                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
     Plaintiff,               )
                              )
     v.                       )      Civil Action No. 04-1543 (RWR)
                              )
SCIENCE APPLICATIONS          )
INTERNATIONAL CORPORATION,    )
                              )
     Defendant.               )
______________________________)

                     MEMORANDUM OPINION AND ORDER

     The United States brought this suit against Science

Applications International Corporation (“SAIC”) under the False

Claims Act (“FCA”), 31 U.S.C. § 3729, and District of Columbia

common law, alleging that SAIC failed to make disclosures of

organizational conflicts of interest (“OCIs”) as was required

under two contracts that SAIC entered into with the Nuclear

Regulatory Commission (“NRC”) in 1992 and 1999.     After a jury

found SAIC liable on the FCA and breach of contract claims and

SAIC’s motion for judgment as a matter of law or, alternatively,

for a new trial was denied, SAIC appealed.    The D.C. Circuit

affirmed the denial of SAIC’s motion for judgment as a matter of

law and the denial of SAIC’s motion for a new trial on the breach

of contract claim.    However, the D.C. Circuit vacated the

judgment on FCA liability and damages and remanded the case for

further proceedings.    SAIC now moves for summary judgment
                                -2-

regarding the FCA knowledge element and damages and the

government moves for partial summary judgment regarding the FCA

falsity element.   Because there are genuine disputes of material

fact regarding the FCA scienter and falsity elements and damages,

the parties’ motions will be denied.

                            BACKGROUND

     The relevant facts were set out in United States v. Science

Applications International Corp. (SAIC II), 653 F. Supp. 2d 87

(D.D.C. 2009) as follows:

          The NRC is an independent federal agency
     established to regulate the civil use of nuclear
     materials. The NRC creates scientific standards for
     allowing radioactive materials with low levels of
     contamination to be released to the private sector for
     recycling and reuse. In 1992 and 1999, the NRC
     contracted with SAIC to provide technical assistance
     related to this effort. Under the 1992 contract, SAIC
     was to provide the NRC with technical assistance
     related to the recycling and reuse of radioactive
     material and was to present an options paper outlining
     the possible approaches to rulemaking for the release
     of these materials. The goal of the 1999 contract was
     to assess regulatory alternatives regarding the release
     of reusable materials. SAIC’s neutrality was critical
     under both contracts.
          SAIC promised in both contracts to forego entering
     into any consulting or other contractual arrangements
     with any organization that could create a conflict of
     interest. The purpose of this clause was to avoid OCIs
     that were, among others, financial, organizational, or
     contractual. SAIC warranted upon entering both
     contracts that it had no OCIs as that term is defined
     in 41 C.F.R. § 20–1.5402(a). The regulation defined an
     OCI as “a relationship . . . whereby a contractor or
     prospective contractor has present or planned interests
     related to the work to be performed under an NRC
     contract which: (1) may diminish its capacity to give
     impartial, technically sound, objective assistance and
     advice or may otherwise result in a biased work
                               -3-

     product, or (2) may result in its being given an unfair
     competitive advantage.” 41 C.F.R. § 20–1.5402(a)
     (1979).1 SAIC further promised in both contracts to


     1
       Furthermore, the NRC regulations incorporated into the
1992 Contract required SAIC to disclose information concerning
situations or relationships that may give rise to OCIs under the
following circumstances:
     (i) Where the offeror or contractor provides advice and
     recommendations to the NRC in a technical area in which
     it is also providing consulting assistance in the same
     area to any organization regulated by the NRC.
     (ii) Where the offeror or contractor provides advice to
     the NRC on the same or similar matter in which it is
     also providing assistance to any organization regulated
     by the NRC.
     (iii) Where the offeror or contractor evaluates its own
     products or services, or the products or services of
     another entity where the offeror or contractor has been
     substantially involved in their development or
     marketing.
     (iv) Where the award of a contract would result in
     placing the offeror or contractor in a conflicting role
     in which its judgment may be biased in relation to its
     work for the NRC, or would result in an unfair
     competitive advantage for the offeror or contractor.
See 41 C.F.R. [§] 20–1.54 at p. 3.
     The NRC regulations incorporated into the 1999 Contract
required SAIC to disclose situations or relationships that may
give rise to organizational conflicts of interest under the
following circumstances:
     ([i]) Where the offeror or contractor provides advice
     and recommendations to the NRC in the same technical
     area where it is also providing consulting assistance
     to any organization regulated by the NRC.
     (ii) Where the offeror or contractor provides advice to
     the NRC on the same or similar matter on which it is
     also providing assistance to any organization regulated
     by the NRC.
     (iii) Where the offeror or contractor evaluates its own
     products or services, or has been substantially
     involved in the development or marketing of the
     products or services of another entity.
     (iv) Where the award of a contract would result in
     placing the offeror or contractor in a conflicting role
     in which its judgment may be biased in relation to its
     work for the NRC, or would result in an unfair
                                  -4-

        disclose any OCIs it discovered after entering the
        contract. SAIC repeatedly certified throughout the
        periods its contracts were in force that it had no OCIs
        and would notify the NRC of any changes resulting in an
        OCI.

SAIC II, 653 F. Supp. 2d at 92-93.

        The government contends “that SAIC breached its OCI

obligations under the 1992 and 1999 contracts by engaging in

relationships with organizations that created an appearance of

bias in the technical assistance and support it provided the

NRC.”    Id. at 93.   Specifically, the government alleges that SAIC

had five actual or potential OCIs that SAIC did not disclose to

the NRC as required under the 1992 and 1999 contracts.      First,

the government argues that SAIC’s relationship with British

Nuclear Fuels, Ltd. (“BNFL”) created an OCI.      The Department of

Energy (“DOE”) contracted with BNFL in 1997 to “decommission and

decontaminate buildings at a [DOE] site in Oak Ridge, Tennessee.”

United States v. Sci. Applications Int’l Corp. (SAIC III), 626

F.3d 1257, 1263 (D.C. Cir. 2010).       BNFL “engaged SAIC to serve as

a subcontractor” on the project.    Id.     “[T]he government argued

that SAIC’s relationship with British Nuclear created a potential

conflict because the project involved the recycling and release

of radioactive materials that would become subject to NRC




     competitive advantage for the offeror or contractor.
See 48 C.F.R. [§] 2009.570–3(b)(1).
                                -5-

regulation after leaving the DOE facility and entering into

interstate commerce.”   Id.

      Second, in 1999, SAIC performed consulting work for Bechtel

Jacobs Corporation (“BJC”).

      SAIC helped Bechtel Jacobs with a dose assessment and
      performed a cost-benefit analysis regarding the
      recycling of radioactively contaminated materials from
      the site. The government contended that SAIC’s work
      for Bechtel Jacobs closely overlapped with the
      company’s work for the NRC, as illustrated most starkly
      by the allegation that a company employee copied
      material from a report prepared for the NRC and pasted
      it into one for Bechtel Jacobs.

Id.

      Third, “SAIC pursued potential radioactive metal recycling

opportunities” with Alaron Corporation.   SAIC II, 653 F. Supp. 2d

at 100.   The government alleges that Alaron was “both licensed

and regulated by the NRC” and that SAIC’s proposed work with

Alaron was “in technical areas that were very similar if not

identical to the advice that SAIC gave to the NRC.”     United

States v. Sci. Applications Int’l Corp. (SAIC I), 555 F. Supp. 2d

40, 54 (D.D.C. 2008) (internal quotation marks omitted).

      Fourth, SAIC’s Vice President Gerald Motl served “as an

officer and board member of the Association of Radioactive Metal

Recyclers (ARMR), a trade association that advocated for national

regulatory standards governing the reuse and recycling of

radioactive materials.”   SAIC III, 626 F.3d at 1264.    Motl also

worked on the 1999 NRC contract.   The government alleges that
                                  -6-

Motl’s work with the ARMR created an OCI with SAIC’s work for the

NRC.

        Fifth, in 1990, SAIC began developing the Plasma Hearth

Process (“PHP”), “an experimental plasma treatment technology for

high-temperature treatment of radioactive waste.”    Pl. U.S.’s

Mot. for Partial Summ. J. (“U.S. Mot. (Falsity)”), Pl. U.S.’s

Stmt. of Undisputed Material Facts in Supp. of U.S.’s Mot. for

Partial Summ. J. (“U.S. Stmt. (Falsity)”) ¶ 78.    The government

alleges that “[t]he goal for the technology was to treat

radioactive waste in such a way that a large portion of it could

be released or recycled into general commerce.”    Id.   It further

alleges that, if used, the PHP would be regulated by the NRC and

thus created an OCI with SAIC’s work for the NRC.    See U.S. Mot.

(Falsity), U.S.’s Mem. of P. & A. in Supp. of its Mot. for

Partial Summ. J. (“U.S. Mem. (Falsity)”) at 14.

        The government filed a five-count amended complaint against

SAIC.    Count One charged that SAIC knowingly presented, or caused

to be presented, to the NRC false or fraudulent claims for

payment or approval in violation of the FCA, 31 U.S.C.

§ 3729(a)(1).    Am. Compl. ¶¶ 103-05.   Count Two alleged that SAIC

knowingly made, or caused to be made or used false records and

statements for the purpose of getting the NRC to pay SAIC’s false

and fraudulent vouchers in violation of the FCA, 31 U.S.C.
                                -7-

§ 3729(a)(2).2   Am. Compl. ¶¶ 106-08.   Counts Three and Four

alleged quasi-contract theories.   Id. ¶¶ 109-13.   Count Five

alleged that SAIC breached its 1992 contract by failing to

disclose its OCIs as required under the contract.    Id. ¶¶ 114-16.

     Judgment was entered in favor of SAIC on Counts Three and

Four of the amended complaint pretrial, SAIC I, 555 F. Supp. 2d

at 60, and a jury trial was held on Counts One, Two, and Five.

     The jury found SAIC liable under § 3729(a)(1) and
     (a)(2) and liable for breach of its 1992 contract with
     the NRC. Specifically, the jury found that SAIC
     knowingly presented or caused to be presented sixty
     false or fraudulent claims for payment or approval by
     the government, causing the government to pay to SAIC
     $1,973,839.61 over and above what the government would
     have paid had SAIC presented truthful claims. The jury
     also found that SAIC knowingly made, used, or caused to
     be made or used seventeen false records or statements
     to get a false or fraudulent claim paid or approved by
     the United States government, causing the government to
     pay to SAIC $1,973,839.61 on the false or fraudulent
     claims over and above what the government would have
     paid had SAIC made truthful statements. In addition,
     the jury found that there was a contract between the
     United States and SAIC and that SAIC breached the
     contract by failing to fully perform a duty under the
     contract without legal excuse and awarded the United
     States monetary damages of $78 for the breach.
     Judgment was entered in favor of the United States
     against SAIC in the amount of $5,921,518.83 in damages
     for the FCA claims, $577,500 in civil penalties for the


     2
       This subsection was recodified as 31 U.S.C.
§ 3729(a)(1)(B) under the Fraud Enforcement and Recovery Act of
2009, Pub. L. No. 111-21, 123 Stat. 1617. However, the amended
version of this provision does not apply in this action. See
SAIC II, 653 F. Supp. 2d at 106-07; cf. SAIC III, 626 F.3d at
1266 (assuming that the district court’s determination that the
amended version of the FCA does not apply to this action is
correct). Thus, this memorandum opinion will continue to refer
to § 3729(a)(2).
                                  -8-

      FCA claims, and $78 in damages for the contract claim,
      for a total of $6,499,096.83.

SAIC II, 653 F. Supp. 2d at 94.

      After trial, SAIC moved for judgment as a matter of law

under Federal Rule of Civil Procedure 50(b) or, in the

alternative, for a new trial under Federal Rule of Civil

Procedure 59(a).   SAIC’s motion was denied, SAIC II, 653 F. Supp.

2d at 112, and SAIC appealed “seeking judgment as a matter of law

with respect to liability on all causes of action and with

respect to FCA damages.”   SAIC III, 626 F.3d at 1265.

Alternatively, SAIC moved for an order vacating “the district

court’s judgment and remand[ing] for a new trial on all claims.”

Id.

      On appeal, the D.C. Circuit

      affirm[ed] the district court’s denial of SAIC’s motion
      for judgment as a matter of law, as well as its
      judgment as to both liability and damages on the
      government’s claim for breach of contract. With
      respect to the judgment as to liability and damages
      under FCA sections 3729(a)(1) and 3729(a)(2), [the
      court] vacate[d] and remand[ed] for further proceedings
      consistent with [its] opinion.

Id. at 1280.

      On remand, SAIC now moves for summary judgment arguing that

the government cannot establish that SAIC is liable under the FCA

because there are insufficient facts for a jury to find that SAIC

“knowingly” failed to disclose its alleged OCIs to the NRC.      SAIC

also moves for partial summary judgment on FCA damages.    The
                                  -9-

government moves for partial summary judgment that SAIC’s claims

and statements were false.

                             DISCUSSION

     Summary judgment may be granted when “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”   Fed. R. Civ.

P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009).   A dispute is “genuine” “where the ‘evidence is such that

a reasonable jury could return a verdict for the non-moving

party,’ a situation separate and distinct from a case where the

evidence is ‘so one-sided that one party must prevail as a matter

of law.’”   Dozier-Nix v. District of Columbia, 851 F. Supp. 2d

163, 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 252 (1986)).    “A fact is ‘material’ if a

dispute over it might affect the outcome of a suit under

governing law[.]”   Holcomb v. Powell, 433 F.3d 889, 895 (D.C.

Cir. 2006) (citing Anderson, 477 U.S. at 248).

     “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by . . . citing to particular

parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations, . . . admissions, interrogatory

answers, or other materials[.]”    Fed. R. Civ. P. 56(c).   The

movant may also rely on sworn testimony given in an earlier
                               -10-

judicial proceeding.   See Langston v. Johnson, 478 F.2d 915, 918

n.17 (D.C. Cir. 1973); see also Int’l Distrib. Corp. v. Am. Dist.

Tel. Co., 569 F.2d 136, 138 (D.C. Cir. 1977).

     To survive a motion for summary judgment, the nonmoving

party “must provide evidence showing that there is a triable

issue as to an element essential to that party’s claim.”

Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006);

see also Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.

Cir. 1988) (“[A] court must enter summary judgment against a

nonmovant ‘who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.’”

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986))).

“In considering a motion for summary judgment, [the court should

draw] all ‘justifiable inferences’ from the evidence . . . in

favor of the nonmovant.”   Cruz-Packer v. District of Columbia,

539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson, 477

U.S. at 255).

     The law of the case “‘doctrine posits that when a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.’”

Pepper v. United States, 131 S. Ct. 1229, 1250 (2011) (quoting

Arizona v. California, 460 U.S. 605, 618 (1983)).   “This

principle applies to ‘issues decided both explicitly and by
                               -11-

necessary implication.’”   Margolis v. U-Haul Int’l, Inc., 818 F.

Supp. 2d 91, 99 (D.D.C. 2011) (quoting PNC Fin. Servs. Grp., Inc.

v. Comm’r, 503 F.3d 119, 126 (D.C. Cir. 2007)).   “Under the law-

of-the-case doctrine, ‘the same issue presented a second time in

the same case in the same court should lead to the same result.’”

Cobell v. Salazar, 679 F.3d 909, 916-17 (D.C. Cir. 2012) (quoting

LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en

banc)).   The doctrine applies only to issues that were previously

litigated and decided.   Nat’l Souvenir Ctr., Inc. v. Historic

Figures, Inc., 728 F.2d 503, 510 n.3 (D.C. Cir. 1984).   “If an

attempt is made to press the same fact issue for a second time on

an unchanged record, law-of-the-case reluctance approaches

maximum force.”   18B Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 4478.5 at 808

(2d ed. 2002); see also Teague v. Mayo, 553 F.3d 1068, 1072-73

(7th Cir. 2009) (finding that a jury verdict is law of the case).

     Under the FCA, a person who

     (1) knowingly presents, or causes to be presented, to
     an officer or employee of the United States
     Government . . . a false or fraudulent claim for
     payment or approval; [or]
     (2) knowingly makes, uses, or causes to be made or
     used, a false record or statement to get a false or
     fraudulent claim paid or approved by the Government;
     . . .
     is liable to the United States Government for a civil
     penalty of not less than $5,000 and not more than
     $10,000, plus 3 times the amount of damages which the
     Government sustains because of the act of that
     person[.]
                                -12-

31 U.S.C. § 3729(a) (2008).   “‘The three elements of FCA

liability [under § 3729(a)(1)] are that (1) defendant submitted a

claim to the government; (2) which was false; and (3) which the

defendant knew was false.’”   SAIC I, 555 F. Supp. 2d at 49

(quoting United States ex rel. Hockett v. Columbia/HCA Healthcare

Corp., 498 F. Supp. 2d 25, 57 (D.D.C. 2007)); see also United

States ex rel. Folliard v. Govplace, Civil Action No. 07-719

(RCL), 2013 WL 1092859, at *3 (D.D.C. Mar. 18, 2013) (citing

United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d

196, 199 (D.C. Cir. 1995)).   A defendant is liable under

§ 3729(a)(2) if (1) the defendant made, used, or caused to be

made a record or statement, (2) which was false, (3) which the

defendant knew was false, and (4) which the defendant made to get

a false or fraudulent claim paid or approved by the government.

Any person who violates the FCA is liable for a civil penalty and

damages.    A defendant is liable for civil penalties if the

defendant “submits a false claim or makes a false statement to

get a false claim paid . . . regardless of whether the government

shows that the submission of that claim caused the government

damages.”   SAIC III, 626 F.3d at 1277.   For treble damages, the

government must also prove the amount of damages it sustained as

a result of the defendant’s act.   See id. at 1277-78.
                                 -13-

I.      FCA LIABILITY

        There are several types of false claims under the FCA.

Here, the government argues that SAIC’s claims and statements

were false under the “implied certification theory.”    Id. at

1266.    “Under this theory, a claim for payment is false when it

rests on a false representation of compliance with an applicable

federal statute, federal regulation, or contractual term.”       Id.;

see also SAIC I, 555 F. Supp. 2d at 49 (“‘The theory of implied

certification is that where the government pays funds to a party,

and would not have paid those funds had it known of a violation

of a law or regulation, the claim submitted for those funds

contained an implied certification of compliance with the law or

regulation and was fraudulent.’” (quoting United States ex rel.

Barrett v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 28, 33

(D.D.C. 2003))).    “Courts infer implied certifications from

silence ‘where certification was a prerequisite to the government

action sought.’”    SAIC III, 626 F.3d at 1266 (quoting United

States ex. rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 214 F.3d

1372, 1376 (D.C. Cir. 2000)).    Thus, under the implied

certification theory, a claim is false or fraudulent if a

defendant withholds “information about its noncompliance with

material contractual requirements.”     Id. at 1269.
                                 -14-

     A.   Scienter

     To be liable under the FCA, a defendant must have presented

a false claim or made a false statement knowingly, meaning that

the defendant had “actual knowledge of the information” or

“act[ed] in deliberate ignorance [or reckless disregard] of the

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

(2008); see also United States v. TDC Mgmt. Corp., Inc., 24 F.3d

292, 297-98 (D.C. Cir. 1994) (explaining that a defendant subject

to liability under the FCA must have “‘actual knowledge’ of the

falsity of their claims or acted with ‘deliberate ignorance’ or

‘reckless disregard’ of the truth or falsity of their claims”

(quoting 31 U.S.C. § 3729(b)).     Thus, a defendant is liable if it

had actual knowledge or if it had constructive knowledge of the

falsity of its claims or statements.    See S. Rep. No. 99-345, at

7, 14-15 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5272.

     Under the implied certification theory, the plaintiff must

establish that “the defendant knows (1) that it violated a

contractual obligation, and (2) that its compliance with that

obligation was material to the government’s decision to pay.”

See SAIC III, 626 F.3d at 1271.3


     3
       The government contends that under the implied
certification theory, the second prong of the scienter
requirement requires that it show that an SAIC employee knew that
the contractual provision was material. It proceeds to explain
that “information is material under the False Claims Act whenever
it has a tendency to influence, or is capable of influencing,
agency decision-making.” U.S.’s Mem. in Opp’n to Def. SAIC’s
                                 -15-

          1.   D.C. Circuit’s consideration of SAIC’s scienter

     SAIC argues that it is entitled to summary judgment on

Counts One and Two of the amended complaint because a reasonable

jury could not find that SAIC knowingly submitted false claims

and made false statements.   The government asserts that “the D.C.

Circuit has already considered, and rejected SAIC’s argument, and

has explicitly held that record evidence supports a finding that

individual SAIC employees acted with knowledge.”    U.S.’s Mem. in

Opp’n to Def. SAIC’s Mot. for Summ. J. on FCA Liability (“U.S.

Opp’n (FCA Liability)”) at 21.    The government makes several

arguments to support its assertion.     First, the government quotes

the D.C. Circuit’s language that “record evidence is sufficient

to have allowed the jury to reasonably believe that SAIC

knowingly submitted false claims for payment and made false


Mot. for Summ. J. on FCA Liability at 33. However, the D.C.
Circuit made clear that the materiality element of the scienter
requirement in this case requires that an SAIC employee knew that
the contractual obligation was “material to the government’s
decision to pay.” SAIC III, 626 F.3d at 1271 (emphasis added).
Thus, to avoid summary judgment, the government must show that an
employee knew that compliance with SAIC’s conflict of interest
obligations was material to -- or had a tendency to influence --
the NRC’s decision to pay the false claims. See United States ex
rel. Ervin & Assocs., Inc. v. Hamilton Sec. Grp., Inc., 370 F.
Supp. 2d 18, 45 (D.D.C. 2005) (“For a violation to give rise to
false claims liability under this theory, compliance with the
presented claim must have been so important to the contract that
the government would not have honored the submission for payment
on the claim if it were aware of the violation.” (citing TDC
Mgmt. Corp., 288 F.3d at 426)); see also United States ex rel.
Head v. Kane Co., 798 F. Supp. 2d 186, 200 (D.D.C. 2011)
(explaining that the FCA plaintiff must show that the false claim
was material to the government’s “decision to pay”).
                                 -16-

statements of compliance with the organizational conflict of

interest requirements set forth in its NRC contracts.”   SAIC III,

626 F.3d at 1273.   The D.C. Circuit earlier cabined this

conclusion by explaining that SAIC argued only that it was

entitled to judgment as a matter of law because the government

had not shown that SAIC knew that it had violated a contractual

obligation.   See id. at 1271.   Accordingly, the D.C. Circuit

proceeded to consider whether there was record evidence that SAIC

knew that the company was violating its contractual conflict of

interest obligations.   In resolving this question, the court of

appeals concluded that, based on the record, a reasonable jury

could have found that “SAIC employees knew that either the

company or its employees had other relationships that placed SAIC

in a conflicting role that might have biased its judgment.”      Id.

at 1272.   The D.C. Circuit did not address whether there was also

sufficient evidence that SAIC knew that the conflict of interest

provision was material.   Thus, in affirming the denial of SAIC’s

motion for judgment as a matter of law, the D.C. Circuit did not

finally decide whether there is sufficient evidence for a jury to

find that SAIC met both prongs of the scienter requirement under

the implied certification theory.

     Second, the government contends that the D.C. Circuit

“explicitly considered and rejected SAIC’s argument,” U.S. Opp’n

(FCA Liability) at 22, when the D.C. Circuit stated:
                               -17-

     We agree that the jury, relying entirely on evidence of
     actual knowledge possessed by individual company
     employees, could have found that SAIC knowingly
     submitted false claims and made false statements.
     Alternatively, relying on evidence regarding the
     actions of employees or SAIC’s systems and structure,
     the jury could also have concluded that the company
     acted recklessly or with deliberate ignorance of the
     truth.

SAIC III, 626 F.3d at 1276.   This language does not foreclose

SAIC’s argument that there is insufficient evidence for a jury to

find that SAIC knowingly submitted false claims and made false

statements.   Despite the government’s characterization that this

language is the D.C. Circuit’s “holding,” see U.S. Opp’n (FCA

Liability) at 22, the language was neither the result of the D.C.

Circuit’s opinion nor “portions of the opinion necessary to that

result,” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67

(1996).4   As such, it is dictum and is not controlling.

     Moreover, the import and meaning of that language is open to

interpretation.   Immediately after that language, the court

commented that “record evidence suggests that some employees who

knew about SAIC’s organizational conflict of interest obligations

to the NRC were also aware of the company’s business

relationships with British Nuclear, MSC, and Bechtel Jacobs.”


     4
       This language was the court’s “counterfactual assessment
of what verdict the jury might have reached” had it not relied on
an erroneous jury instruction. See SAIC III, 626 F.3d at 1276.
The court found that such an assessment was insufficient under
the relevant standard to affirm the judgment for the government
on its FCA claims and thus vacated the judgment and remanded the
case. See id. at 1276-77.
                                 -18-

SAIC III, 626 F.3d at 1276.    The court continued that, “[i]f the

jury found that these individuals knew or recklessly failed to

know that SAIC, by having these conflicts and failing to disclose

them, violated a requirement under its NRC contract that was

material to the receipt of payment, then that finding would be

enough to establish SAIC’s scienter.”    Id. (emphasis added).

However, the court did not comment on whether the record was

sufficient for the jury to have found that SAIC knew that

compliance with its OCI obligations was material to the NRC’s

decision to pay SAIC’s claims.    Thus, while the court’s language

may be read as a determination that there is sufficient evidence

for a jury to find that SAIC knew that its claims and statements

were false, the language may also be a simple explanation of what

the jury might have done.     “In any event, the ambiguous

comment[s] [were] made without analysis in dicta and [do] not

control this case.”   Pac. Operators Offshore, LLP v. Valladolid,

132 S. Ct. 680, 688 (2012).

          2.   Actual knowledge

               a.     D.C. Circuit’s standard

     SAIC argues that under the implied certification theory, to

prove that SAIC had actual knowledge of a false claim or

statement, the government must show that at least one individual

SAIC employee knew both that SAIC had an OCI and that SAIC’s

conflict of interest obligations were material.    See Def. SAIC’s
                               -19-

Mot. for Summ. J. on FCA Liability (“SAIC Mot. (FCA Liability)”),

Mem. of P. & A. in Supp. of Def. SAIC’s Mot. for Summ. J. on FCA

Liability (“SAIC Mem. (FCA Liability)”) at 14-15.    The government

counters that it can meet its burden by showing that one SAIC

employee knew that SAIC had an OCI and a different SAIC employee

knew that the conflict of interest obligations were material.

See U.S. Opp’n (FCA Liability) at 27-31.

     The D.C. Circuit did not expressly address this issue on

appeal.   However, in rejecting the “collective knowledge” jury

instruction, it explained that, to establish a corporation’s

scienter under the implied certification theory, the FCA

plaintiff must show that an individual employee knew both that

the corporation was noncompliant with its contractual obligations

and that the obligations were material.    At trial, the jury was

instructed that SAIC is

     liable for the collective knowledge of all employees
     and agents within the corporation so long as those
     individuals obtained their knowledge acting on behalf
     of the corporation.
          Therefore, if a corporation has many employees or
     agents, you must consider the knowledge possessed by
     those employees and agents as if it was added together
     and combined into one collective pool of information.
     If that collective pool of information here gives a
     reasonably complete picture of false or fraudulent
     statements or claims -- false or fraudulent claims or
     false statements, you may find that SAIC itself
     possessed a reasonably complete picture of the false or
     fraudulent claims or false statements and acted
     knowingly.

Final Jury Instructions, 7/28 a.m. Tr. at 17:1-14.
                               -20-

     On appeal, the D.C. Circuit held that the “collective

knowledge” instruction “provides an inappropriate basis for proof

of scienter because it . . . is inconsistent with the Act’s

language, structure, and purpose.”    SAIC III, 626 F.3d at 1274.

It explained that the statutory definitions of knowing and

knowingly are meant

     to capture the “‘ostrich-like’ conduct which can occur
     in large corporations” where “corporate officers
     insulate themselves from knowledge of false claims
     submitted by lower-level subordinates” . . . [without]
     “punishing honest mistakes or incorrect claims
     submitted through mere negligence” or imposing “a
     burdensome obligation” on government contractors rather
     than a “limited duty to inquire.” The resulting
     statutory language demonstrates the care Congress took
     to balance competing objectives. Although Congress
     defined “knowingly” to include some forms of
     constructive knowledge, its definition of that term
     imposes liability for mistakenly false claims only when
     the defendant deliberately avoided learning the truth
     or engaged in aggravated gross negligence.

SAIC III, 626 F.3d at 1274-75 (quoting S. Rep. No. 99–345, at 6-

7, 19 (1986)).   Thus, the court concluded that the collective

knowledge instruction was problematic because it

     [l]ack[s] such balance and precision . . . and allows
     “a plaintiff to prove scienter by piecing together
     scraps of ‘innocent’ knowledge held by various
     corporate officials, even if those officials never had
     contact with each other or knew what others were doing
     in connection with a claim seeking government funds.”

Id. (quoting United States ex rel. Harrison v. Westinghouse

Savannah River Co., 352 F.3d 908, 918 n.9 (4th Cir. 2003)).

     Like its view of the collective knowledge instruction, the

government’s interpretation of the scienter requirement lacks the
                                -21-

balance that Congress intended to establish in defining knowing

and knowingly.    The government’s scienter requirement would allow

it to prove that SAIC knowingly submitted false claims and made

false statements by piecing together “innocent” knowledge.    For

example, the government could show that SAIC had the requisite

scienter by showing that one employee knew that SAIC was

noncompliant with the NRC contracts because SAIC had OCIs and

that another employee knew the conflict of interest obligations

were material.    To establish scienter, the government would not

have to show that the employees ever spoke to each other, were

aware of what each other knew, or recklessly disregarded the

truth or falsity of their claims or statements.   However, the

D.C. Circuit made clear that this kind of “constructive

knowledge” should be the basis for liability only where a

corporation’s structure or processes prevented an employee from

learning what the other knew.   See SAIC III, 626 F.3d at 1274-75.

Otherwise, a company may be found liable under the FCA where its

employees were merely negligent.   To maintain Congress’s intended

balance, the same employee must have actual knowledge that a

claim is false.

     Under the implied certification theory, a claim is false if

“the contractor withheld information about its noncompliance with

material contractual requirements.”    Id. at 1269.   Thus, the

government must prove either that the same employee knew of the
                              -22-

noncompliance with a contractual obligation and knew that the

obligation was material, or that SAIC deliberately ignored or

recklessly disregarded the truth.    See United States v. Fadul,

No. DKC 11-0385, 2013 WL 781614, at *9 (D. Md. Feb. 28, 2013)

(citing SAIC III, 626 F.3d at 1274) (explaining that in a case

where the government seeks to hold an entity liable under the FCA

under an implied certification theory, “the Government must prove

an entity’s scienter by demonstrating that a particular employee

or officer acted knowingly” (emphasis added)); see also SAIC III,

626 F.3d at 1276 (stating that a jury could find that SAIC had

actual knowledge where there is evidence that “some employees who

knew about SAIC’s organizational conflict of interest obligations

to the NRC were also aware of the company’s business

relationships with British Nuclear, . . . and Bechtel Jacobs” and

“that these individuals knew or recklessly failed to know that

SAIC, by having these conflicts and failing to disclose them,

violated a requirement under its NRC contract that was material

to the receipt of payment” (emphasis added)).5


     5
       United States ex rel. Harrison v. Westinghouse Savannah
River Co., 352 F.3d 908 (4th Cir. 2003), does not compel a
different conclusion. In its opposition to SAIC’s motion for
summary judgment on FCA liability, the government argues that in
Harrison, the Fourth Circuit “refused to adopt a standard less
onerous than the one sought by SAIC here.” U.S. Opp’n (FCA
Liability) at 28. In Harrison, the defendant argued that the FCA
requires that the plaintiff show that an employee knew of the
company’s noncompliance with a contractual provision and that the
same employee knew that the company was required to submit
certifications and submitted a false certification to the
                                -23-

               b.     Evidence that individual SAIC employee knew
                      that claims and statements were false

     SAIC argues that it is entitled to summary judgment on the

government’s FCA claims because there is “no evidence that any

SAIC employee simultaneously knew of SAIC’s alleged conflict-of-

interest violations and that those violations were supposedly

material to the Government’s payment decisions.”   SAIC Mem. (FCA

Liability) at 2.    Specifically, SAIC asserts that SAIC employees

John Pierce Martin, Thomas Rodehau, Alex Murray, Michael

McKenzie-Carter, Sandra Carder, and Dr. Mark Otis did not know

that SAIC had OCIs in violation of the 1992 and 1999 contracts

and that those employees did not know that SAIC’s conflict of

interest obligations were material to the government’s decision

to pay.

     The government counters that the evidence shows that

multiple SAIC employees knew both that SAIC had OCIs that



government. 352 F.3d at 918. The court “decline[d] to adopt
Westinghouse’s view that a single employee must know both the
wrongful conduct and the certification requirement.” Id. at 919.
The court explained that if it “established such a rule,
corporations would establish segregated ‘certifying’ offices that
did nothing more than execute government contract certifications,
thereby immunizing themselves against FCA liability.” Id. The
government admits that the “single actor” theory rejected in
Harrison is distinct from the standard adopted by the D.C.
Circuit in this case. However, the government has not
established the relevance of Harrison to this case or
demonstrated that Harrison’s “single actor” theory is less
onerous than the D.C. Circuit’s requirement that the same
employee know of the company’s non-compliance with a contractual
provision and the materiality of that provision.
                                -24-

violated the NRC contracts and that SAIC’s conflict of interest

obligations were material to the government’s decision to pay

SAIC’s claims.   Specifically, the government argues that five

SAIC employees knew both that SAIC had an OCI and that SAIC’s OCI

obligations were material.

     First, the government argues that SAIC employee Steve Turner

knew that SAIC’s claims were false.    There is sufficient evidence

in the record to create a triable question of whether Turner was

aware that the BNFL Oak Ridge project could create an OCI with

the work being done for the NRC under the 1992 and 1999

contracts.   See, e.g., Turner Test., 7/7 p.m. Tr. 87:22-90:25

(testifying that the Oak Ridge project would involve recycling

metal from commercial nuclear power plants); Turner Test., 7/8

a.m. Tr. 61:18-62:16 (suggesting that he may have known that the

NRC was working on developing rules regarding recycling

radioactive materials);   Murray Test., 7/2 p.m. Tr. 75:11-25,

76:18-21, 92:1-6, 109:21-110:2 (testifying that Murray told

Turner that the Oak Ridge project may create an OCI with the NRC

project).    However, the government has not identified evidence

that shows that Turner was aware that SAIC had conflict of

interest obligations under the NRC contracts and thus, that SAIC

was noncompliant with the 1992 and 1999 contracts.   Similarly,

although Turner testified that both he and SAIC “take [OCIs] very

seriously,” Turner Test., 7/8 p.m. Tr. 109:1-3, the government
                                -25-

has not shown that Turner knew that the conflict of interest

obligations were material to the government’s decision to pay the

claims submitted under the 1992 and 1999 contracts.   Therefore,

the government has not provided evidence that shows that there is

a triable issue as to whether Turner knew that SAIC’s claims and

statements were false.

     Second, the government argues that Murray knew that SAIC had

an OCI with its work for the NRC and that its conflict of

interest obligations were material.    There is evidence that

Murray knew that SAIC’s work with BNFL on the Oak Ridge Project

created an OCI.   See, e.g., Murray Test., 7/2 p.m. Tr. 75:11-25

(testifying that he knew that there were some “overlaps” between

SAIC’s work with BNFL and the NRC); Murray Test., 7/3 a.m. Tr.

11:25-12:4 (testifying that he was “concerned that there was a

potential for conflict of interest for work related to the Oak

Ridge projects, . . . and the work on the NRC contract on metal

recycle”).    However, the government has not cited any evidence

that shows that Murray knew that the NRC contracts contained

conflict of interest obligations or that the obligations were

material.    Thus, the government has not made a showing sufficient

to establish that Murray knew that SAIC’s claims and statements

were false.

     Third, the government alleges that McKenzie-Carter knew that

SAIC’s claims and statements were false.   McKenzie-Carter was an
                                 -26-

SAIC scientist who “helped prepare SAIC’s technical proposal for

the 1992 Contract and worked on both the 1992 and 1999

Contracts.”   SAIC Mot. (FCA Liability), Def. SAIC’s Stmt. of

Undisputed Material Facts in Supp. of its Mot. for Summ. J. on

FCA Liability ¶ 42.   In this capacity, he was familiar with the

scope of the work to be performed under the NRC contracts

including that SAIC’s work could affect potential rulemaking.

McKenzie-Carter Test., 7/17 p.m. Tr. 41:14-42:10.      In his

deposition, McKenzie-Carter testified that he was “somewhat

familiar” with the OCI regulations that applied to the 1992 and

1999 contracts.   U.S. Opp’n (FCA Liability), Ex. 35 (“McKenzie-

Carter Dep.”) at 105:19-106:2.    At trial, McKenzie-Carter also

confirmed that he understood that the NRC wanted a product that

could be “trusted” and that “one of the ways that NRC seeks to

make sure that its contractors’ assistance can be trusted is

organizational conflict of interest avoidance.”      McKenzie-Carter

Test., 7/17 p.m. Tr. 45:25-46:21.       Thus, a jury could find that

McKenzie-Carter knew that the conflict of interest obligations in

the NRC contracts were material.

     McKenzie-Carter testified that, in late 1999, another SAIC

employee informed him about the work that employee was doing on

the BNFL Oak Ridge Project.   See McKenzie-Carter Test., 7/17 p.m.

Tr. 77:12-18.   In his deposition, McKenzie-Carter stated that he

knew about the BJC project and had considered whether it created
                                  -27-

an OCI with SAIC’s work for the NRC.     See McKenzie-Carter Dep. at

91:20-92:20, 93:11-12.    Although McKenzie-Carter testified that

he ultimately concluded that there was no OCI, a jury could

disbelieve his testimony in light of McKenzie-Carter’s knowledge

of the substantial overlap between the work being done for the

BJC project and the work being done under the NRC contracts.      See

id. at 93:13-94:17.   Thus, the record could support a finding

that McKenzie-Carter knew that the BNFL Oak Ridge project and the

BJC project created OCIs with the NRC work.    The government also

asserts that McKenzie-Carter either knew or recklessly

disregarded Motl’s role on the board of the ARMR.    See U.S.’s

Resp. Stmt. of Genuine Issues & Material Facts in Supp. of its

Mem. in Opp’n to SAIC’s Mot. for Summ. J. on FCA Liability (“U.S.

Resp. Stmt. (FCA Liability)”) ¶ 200.     Specifically, the

government argues that unlike other versions of Motl’s resume,

the one submitted with the NRC contract omitted Motl’s service

with the ARMR.   See id. ¶ 198.    However, the United States failed

to provide any evidence that McKenzie-Carter was responsible for

selecting Motl to work on the 1999 contract or that McKenzie-

Carter knew or was responsible for omitting the ARMR board

position from the version of Motl’s resume submitted to the NRC

with the 1999 Contract.   Accordingly, the government has shown

that whether McKenzie-Carter knew that SAIC’s claims and

statements were false in 1999 is a triable issue.
                                 -28-

     Fourth, the government argues that SAIC employee Jeffery

Slack knew that SAIC’s claims were false.     The government has

provided sufficient evidence to establish that Slack knew that

the Oak Ridge Project with BNFL created an OCI with the NRC

contracts.   Slack testified that he worked on the BNFL Oak Ridge

project and on the BJC project.    Slack Test., 7/9 a.m. Tr. 84:24-

85:11, 112:14-23.   He further stated that his work for BJC

included recycling radioactive materials.     Id. at 100:1-101:19.

Slack admitted that he was aware of the work that SAIC was doing

under the NRC contracts and that he knew that the work included

recycling contaminated metals.    See id. at 104:13-105:17.

However, the government has not demonstrated that Slack knew of

SAIC’s conflict of interest obligations under the NRC contracts

or that Slack knew that those obligations were material to the

government’s decision to pay.    Thus, the government has not

provided evidence that shows that there is a triable issue as to

whether Slack knew that SAIC’s claims and statements were false.

     Finally, the government asserts that Rucker “understood that

SAIC was required to avoid and disclose potential organizational

conflicts of interest to its customers, including the NRC.”     U.S.

Resp. Stmt. (FCA Liability) ¶ 149.      However, the government has

provided no evidence to support this assertion.6     Moreover, even


     6
       The portions of Rucker’s trial and deposition testimony
that the government cites do not support its assertion. At his
deposition, Rucker testified that he received OCI training at
                               -29-

if Rucker did testify that he knew that SAIC was required to

avoid potential OCIs, the government has not cited any evidence

that Rucker knew of SAIC’s obligations under the 1992 and 1999

contracts or that they were material to the NRC’s decision to pay

SAIC’s claims.   Therefore, the government has not made a showing

sufficient to establish that Rucker knew that SAIC’s claims and

statements were false.

     In its Responsive Statement of Genuine Issues and Material

Facts in Support of its Memorandum in Opposition to SAIC’s Motion

for Summary Judgment on False Claims Act Liability, the

government also argues that SAIC employees Richard Profant,

Gerald Truitt, Christopher Caldwell, Motl, Gary Leatherman, and

Milo Larsen knew that the NRC contracts contained an OCI

provision and that the OCI provision was material.   See U.S.

Resp. Stmt. (FCA Liability) ¶¶ 154-55, 161-62, 184-95, 201-10.7



SAIC. U.S. Opp’n (FCA Liability), Ex. 27 (Rucker Dep. at 246:21-
247:1). However, he did not testify about the knowledge he
gained from that training. Similarly, the cited portions of
Rucker’s trial testimony are silent as to whether Rucker knew
that SAIC had an obligation to avoid and disclose potential OCIs.
See Rucker Test., 7/10 a.m. Tr. 106:8-108:15 (testifying that he
did not think that “it was a potential conflict of interest if
SAIC was preparing or furnishing advice to a government agency in
a technical area where it was also providing consulting
assistance to any other organization”).
     7
        The government buried these arguments in its 101-page
Responsive Statement, hardly the “concise” statement contemplated
by Local Civil Rule 7(h)(1). Its legal arguments and conclusions
belonged in its memorandum of points and authorities in
opposition, which cannot exceed 45 pages. LCvR 7(a)-(b), (e).
                                -30-

However, the government’s arguments in its Responsive Statement

are insufficient to create a triable issue as to whether SAIC had

actual knowledge of its allegedly false claims.

     The government asserts that a jury could reasonably infer

that SAIC employee Dr. Reginald Gotchy knew that SAIC had OCI

obligations under the 1992 contract and that they were material.

See id. ¶ 153.   While Gotchy’s status as SAIC’s Project Manager

for the 1992 contract is sufficient evidence to create a genuine

dispute of material fact about whether Gotchy knew that the 1992

contract imposed conflict of interest obligations on SAIC,

without more, this evidence is insufficient for a reasonable jury

to conclude that Gotchy knew that the obligations were material

to the NRC’s decision to pay.

     The government argues that SAIC employee Betty Bidwell knew

that SAIC’s claims to the NRC were false.    See id. ¶¶ 176-80.

During her deposition, Bidwell agreed that it was her

“understanding that contractors with the NRC, contractors like

SAIC, have an obligation to disclose to the NRC information

describing relations which may give rise to an actual or

potential conflict of interest.”   U.S. Opp’n (FCA Liability), Ex.

31 (Bidwell Dep. at 129:22-130:4).     She also testified that

contractors must “disclose relevant information in accordance

with whatever the [request for proposal] states if there’s a

potential OCI for [a relationship] to be an actual conflict.”
                                -31-

Id. at 130:7-11.   However, the government did not provide any

evidence to establish that Bidwell knew that the NRC contracts

included such an obligation or that if it did, that the

obligation was material.   Thus, the government has not provided

evidence that shows that there is a triable issue as to whether

Bidwell knew that SAIC was noncompliant with the NRC contracts

and that the OCI obligations were material.

     Thus, evidence in the record could support a finding that in

1999, McKenzie-Carter knew that SAIC was noncompliant with its

OCI obligations and that SAIC’s conflict of interest obligations

were material to the government’s decision to pay the NRC

contract.   The government has not made a showing sufficient to

establish that any other individual SAIC employee had actual

knowledge that SAIC’s claims and statements were false.

            3.   Reckless disregard or deliberate ignorance

     SAIC argues that there is insufficient evidence to show that

SAIC recklessly disregarded or deliberately ignored the truth or

falsity of its claims submitted to the NRC.   See SAIC Mem. (FCA

Liability) at 30-42.    The government counters that as was

determined in SAIC II, there is sufficient evidence for a

reasonable jury to find that SAIC’s OCI compliance system

prevented SAIC from determining the truth or falsity of its

claims or statements.   U.S. Opp’n (FCA Liability) at 35-38.   SAIC

retorts that the government cannot rely on the holding in SAIC II
                               -32-

because in SAIC III, the D.C. Circuit changed the reckless

disregard and deliberate ignorance standards.    See Reply Mem. in

Supp. of Def. SAIC’s Mot. for Summ. J. on FCA Liability at 17 n.3

(arguing that the D.C. Circuit’s “statements about the scienter

requirement (including its rejection of the Government’s

collective knowledge theory) apply with equal force” to the three

FCA knowledge standards).

     In finally rejecting the collective knowledge theory, the

D.C. Circuit limited the theories an FCA plaintiff can use to

prove that a defendant had constructive knowledge that its claims

or statements were false.8   However, the court agreed that an FCA

plaintiff can still establish that a defendant acted knowingly by

demonstrating that a corporate defendant’s structures or

processes were such that the defendant could not learn that its

claims and statements were false.     See SAIC III, 626 F.3d at 1276

(explaining that “if a plaintiff can prove that a government

contractor’s structure prevented it from learning facts that made

its claims for payment false, then the plaintiff may establish



     8
       For example, if a contractor’s employee was recklessly
unaware of the contractor’s non-compliance with a contractual
provision and another employee was recklessly unaware of the
materiality of that contractual provision, an FCA plaintiff could
not rely on the employees’ “collective pool of knowledge” alone
to argue that the contractor knew that its claims were false.
Instead, an FCA plaintiff would have to show that the
organization’s structure or processes prevented one employee from
learning of the falsity of the claim. See SAIC III, 626 F.3d at
1274-75.
                                -33-

that the company acted in deliberate ignorance or reckless

disregard of the truth of its claims”).

      In SAIC II, SAIC argued that “the evidence at trial was

legally insufficient to support a jury finding of knowledge under

a reckless disregard or deliberate ignorance theory because the

evidence shows that SAIC made diligent inquiry to ensure

compliance with its OCI obligations.”   653 F. Supp. 2d at 99

(internal citations omitted).   This argument was rejected:

      While SAIC maintains that its OCI compliance system was
      both reasonable and effective, and that it made a
      diligent inquiry to ensure compliance, there was also
      testimony provided by at least two witnesses, Sandra
      Carder and Betty Bidwell, who testified that SAIC’s OCI
      compliance system was inadequate in certain important
      respects, including by failing to incorporate some of
      SAIC’s business relationships, by containing incomplete
      descriptions of SAIC’s work, and by failing to
      associate relevant key words with certain descriptions.
      (Carder Test., 7/22 a.m. Tr. 66:18–69:11, 78:13–21;
      Bidwell Test., 7/16 a.m. Tr. 76:14–77:9.) Similarly,
      witness John Pierce Martin testified that he made
      representations to the government about SAIC’s OCIs
      without having seen documents the jury could have
      deemed relevant to their assessment of SAIC’s OCIs.
      (See Martin Test., 7/14 p.m. Tr. 18–40.) Accordingly,
      there was sufficient evidence to support a jury’s
      finding that SAIC acted with reckless disregard or
      deliberate ignorance.

Id.   Thus, it has already been determined that there is

sufficient evidence for a jury to find that SAIC’s compliance

system did not allow SAIC to determine the truth or falsity of

its claims or statements.9   Because there is sufficient evidence


      9
       Although SAIC II was deciding a motion for judgment as a
matter of law under Rule 50, “the standard for granting summary
                                 -34-

that SAIC knew that its claims and statements were false, SAIC’s

motion for summary judgment will be denied.

        B.   False claims and statements

        The government moves for partial summary judgment that

SAIC’s claims and statements were false.

        “[T]o establish the existence of a ‘false or fraudulent’

claim on the basis of implied certification of a contractual

condition, the FCA plaintiff -- here the government -- must show

that the contractor withheld information about its noncompliance

with material contractual requirements.”    SAIC III, 626 F.3d at

1269.    The government may establish materiality in numerous ways

“such as through testimony demonstrating that both parties to the

contract understood that payment was conditional on compliance

with the requirement at issue.”    Id.

        The government argues that the jury’s verdict that SAIC

violated the FCA bars SAIC from relitigating that SAIC breached

its conflict of interest obligations and that SAIC failed to

disclose its noncompliance with the NRC.    See U.S. Mem. (Falsity)

at 20-22.    The government asserts it is the law of the case that

SAIC submitted false claims and made false statements to the NRC.

Id.     On remand, the D.C. Circuit vacated “the judgment as to



judgment ‘mirrors’ the standard for judgment as a matter of law,
such that ‘the inquiry under each is the same.’” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(quoting Anderson, 477 U.S. at 250-51).
                               -35-

liability and damages under FCA sections 3729(a)(1) and

3729(a)(2).”   SAIC III, 626 F.3d at 1280.   Vacated judgments are

not law of the case.   See Johnson v. Bd. of Educ. of Chicago, 457

U.S. 52, 53 (1982); see also Jackson v. Coalter, 337 F.3d 74, 85

(1st Cir. 2003).   Because the court of appeals vacated the

judgment as to FCA liability, the jury’s verdict that SAIC

violated the FCA is not the law of the case.10

     The government also argues that the undisputed evidence

shows that all five of SAIC’s challenged business

relationships -- SAIC’s relationships with BNFL, BJC, ARMR, and

Alaron, and its financial interest in the PHP -- violated SAIC’s


     10
       The government also argues that the jury’s verdict that
SAIC breached the 1992 contract precludes SAIC “from arguing
during retrial that it did not breach its duty to avoid and
disclose organizational conflicts of interest.” U.S. Mem.
(Falsity) at 17. However, “[i]ssue preclusion is inapplicable
here because it applies only where a Court has decided an issue
in a separate lawsuit.” Havens v. Mabus, 892 F. Supp. 2d 303,
310 n.4 (D.D.C. 2012) (citing Novak v. World Bank, 703 F.2d 1305,
1309 (D.C. Cir. 1983)); accord Jewish War Veterans of the U.S.,
Inc. v. Gates, 506 F. Supp. 2d 30, 38-39 (D.D.C. 2007); see also
Montana v. United States, 440 U.S. 147, 153 (1979) (“Under
collateral estoppel, once an issue is actually and necessarily
determined by a court of competent jurisdiction, that
determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior
litigation.” (emphasis added)). Instead, because the government
argues that the jury in this case previously decided these
issues, only the law of the case doctrine applies. See Overseas
Shipholding Grp., Inc. v. Skinner, 767 F. Supp. 287, 296 (D.D.C.
1991) (explaining that “it is hornbook law that the law of the
case doctrine operates as a form of issue preclusion within the
same case”). Curiously, the government did not argue in its
motion for summary judgment that the jury’s breach of contract
verdict and the issues necessarily decided by implication are law
of the case.
                                 -36-

conflict of interest obligations.       See U.S. Mem. (Falsity) at 26;

see also U.S. Reply in Supp. of its Mot. for Partial Summ. J.

(“U.S. Reply (Falsity)”) at 23 n.18.      In addition, the government

argues that it is undisputed that SAIC did not disclose any of

these relationships to the NRC.    U.S. Mem. (Falsity) at 26.

             1.   Contractor provides work to an organization
                  regulated by the NRC in the same area or on the
                  same matter as the contractor’s work for the NRC

        The 1992 and 1999 contracts required SAIC to certify that

the NRC contracts did not result in any of the following

situations or relationships:

        (i) Where the . . . contractor provides advice and
        recommendations to the NRC in the same technical area
        where it is also providing consulting assistance to any
        organization regulated by the NRC.
        (ii) Where the . . . contractor provides advice to the
        NRC on the same or similar matter on which it is also
        providing assistance to any organization regulated by
        the NRC.

48 C.F.R. § 2009.570-3(b)(1); see also SAIC III, 626 F.3d at

1262.    The government argues that at least four of SAIC’s five

challenged business relationships were with organizations that

were regulated by the NRC.    See U.S. Mem. (Falsity) at 26-27.

The government further argues that undisputed evidence shows that

SAIC’s work with these companies was in the same area as the work

that SAIC was performing for the NRC.      See id. at 27-28.

        First, the government has shown that there is evidence in

the record that BNFL was regulated by the NRC.      See SAIC II, 653

F. Supp. 2d at 100.    SAIC counters that there is evidence that
                                -37-

SAIC’s work with BNFL was not regulated by the NRC.    See, e.g.,

Turner Test., 7/8 p.m. Tr. at 104:13-23.    However, SAIC does not

dispute the government’s broader claim that BNFL is an

organization regulated by the NRC.     Thus, the government’s

assertion that BNFL was a NRC licensee during the relevant period

is conceded.   See Fed. R. Civ. P. 56(e)(2) (allowing court to

consider as undisputed a movant’s factual assertion that the

opponent fails to address); Iweala v. Operational Techs. Servs.,

Inc., 634 F. Supp. 2d 73, 80–81 (D.D.C. 2009).     The government

contends that SAIC was assisting BNFL in the release and recycle

of radioactive material which was the same technical area as was

SAIC’s work with the NRC.   SAIC provides sufficient evidence to

show that there is a genuine dispute as to whether SAIC’s work

with BNFL was in the “same area” as its work for the NRC.       For

example, Slack testified that SAIC’s work with BNFL included

studying a metal used at DOE facilities but not at NRC

facilities.    See Slack Test., 7/9 p.m. Tr. at 48:3-49:1.      A

reasonable jury could find that given the different metals,

SAIC’s work with BNFL was not in the “same area” as its work for

the NRC.

     Second, the government argues that ARMR included a number of

NRC licensees.   See Loiselle Test., 7/7 a.m. Tr. at 56:12-15.

The government further argues that as a member of the board of

directors for ARMR, Motl advised and assisted ARMR on the same
                                 -38-

proposed rule with which SAIC was assisting the NRC.    See id. at

106:2-109:8.   However, SAIC provides evidence that SAIC was never

a member of ARMR.    See Loiselle Test., 7/7 p.m. Tr. at 38:1-5.

Thus, a reasonable jury could find that SAIC was not a member of

ARMR and that Motl’s individual role on the board of directors

was insufficient to create an actual or potential OCI.

     Third, at trial, there was evidence that Alaron had an NRC-

regulated facility.   See SAIC II, 653 F. Supp. 2d at 100.    There

was also evidence that SAIC was going to assist Alaron with and

advise Alaron on the release and recycle of nuclear materials if

Alaron was awarded a contract.    Taylor Test., 7/9 a.m. Tr. at

63:13-64:8.    SAIC counters that it was going to work at Alaron’s

DOE facility in Georgia and not at Alaron’s NRC-regulated

Pennsylvania facility.   See id. at 66:20-67:4.    However, SAIC

does not dispute the government’s general allegation that Alaron

was regulated by the NRC.   SAIC does provide evidence that it did

not advise or assist Alaron because Alaron was never awarded the

proposed contract.    See Tempel Test., 7/9 a.m. Tr. at 32:23-25.

Thus, a jury could find that SAIC’s relationship with Alaron did

not violate SAIC’s conflict of interest obligations because

SAIC’s proposed work with Alaron never occurred.

     Fourth, the government asserts that based on SAIC’s concept

of the PHP, the project could have involved materials regulated

by the NRC including radioactive waste.   See Larsen Test., 7/10
                                   -39-

a.m. Tr. at 32:2-14; 11:2-10.      SAIC counters that the PHP never

came to fruition.    See id. at 57:15-23.    As such, it contends

that any plans to seek an NRC license are irrelevant because the

concept was never regulated by the NRC.     There is also evidence

that the majority of the PHP work was “designed specifically for

DOE’s [waste].”    Leatherman Test., 7/16 a.m. Tr. at 42:12-21.

Based on the evidence in the record, a reasonable jury could find

that the PHP was not regulated by the NRC and that the SAIC’s

proposed work with the PHP was not in the same area or on the

same matter as SAIC’s work for the NRC.

             2.   Potential bias

     Under the 1992 and 1999 contracts, SAIC affirmed numerous

times that it did not have any OCIs and agreed to promptly

disclose any OCIs that arose after SAIC entered into the

contracts.    The contracts adopted the then-NRC regulations’

definition of an OCI.    The regulations defined an OCI as:

     “a relationship . . . whereby a contractor or
     prospective contractor has present or planned interests
     related to the work to be performed under an NRC
     contract which: (1) May diminish its capacity to give
     impartial, technically sound, objective assistance and
     advice or may otherwise result in a biased work
     product, or (2) may result in its being given an unfair
     advantage.”

SAIC III, 626 F.3d at 1262 (quoting 41 C.F.R. § 20-1.5402(a)).

The government argues that SAIC’s contested business

relationships created a potential that SAIC would present the NRC

with biased work product.    See U.S. Mem. (Falsity) at 28.     SAIC
                                -40-

counters that there is a genuine dispute whether SAIC’s

relationships resulted in a biased work product for the NRC.

     There is evidence that SAIC’s work with BNFL did not result

in biased work for the NRC.   Caldwell denied that SAIC had “any

responsibility to release metals from” from BNFL’s facility.

Caldwell Test., 7/9 p.m. Tr. at 114:7-9.    He further testified

that SAIC did not have a financial interest in the release or

recycle from the BNFL facility.   Id. at 114:10-115:2.    Because

SAIC was not obligated to release metals and did not have a

financial interest in any release or recycle from the BNFL

facility, a reasonable jury could find that SAIC’s work with BNFL

did not result in biased work for the NRC.

     There is also evidence that SAIC’s work with BJC did not

result in biased work for the NRC.     At trial, the government

introduced testimony and other evidence that SAIC’s work for both

BJC and the NRC included dose assessment and cost-benefit

analyses of proposed recycle options.    See SAIC II, 653 F. Supp.

2d at 101.   “On the evidence presented at trial regarding the

similarities between the work performed for the NRC and for the

BJC Dose Assessment project, [a] jury could . . . reasonably

conclude[] that the BJC project may have created an actual or

potential OCI.”   Id.   However, a reasonable jury could also reach

the opposite conclusion and find that SAIC’s work for the NRC was

not biased despite the similarities.    For example, Slack
                               -41-

testified that the DOE limits on the release of materials applied

to the BJC project.   See Slack Test., 7/9 p.m. Tr. at 26:22.

However, because the NRC and the DOE placed the same limits on

release, in an early report prepared for BJC, SAIC stated that

the assessments in the report complied with both DOE and the NRC

limits for release.   See id. at 26:13-27:12.   Thus, a reasonable

jury could find that the similarities between the work SAIC was

doing for BJC and the NRC reflected common industry practices and

mirrored similarities between the NRC’s and the DOE’s regulations

and a finding that the similarities indicate bias overstate their

significance.

     SAIC has shown that whether its relationship with ARMR

created a potential to produce biased work for the NRC is

disputed.   Although there is evidence that “Motl’s involvement

with the [ARMR] placed SAIC in a conflicting role where it may

have been biased,” SAIC II, 653 F. Supp. 2d at 101, there is also

evidence that the relationship did not result in SAIC bias.     For

example, as is noted above, there is evidence that SAIC was not a

member of ARMR.   There is also evidence that SAIC did not pay for

Motl to attend ARMR meetings that were not in Motl’s hometown.

See Motl Test., 7/23 a.m. Tr. at 52:11-53:1.    While the parties

agree that Motl played a significant role in the 1999 contract,

see U.S. Stmt. (Falsity) ¶ 106; Def. SAIC’s Opp’n to Pl. U.S.’s

Mot. for Partial Summ. J., Def. SAIC’s Resp. Stmt. of Genuine
                                -42-

Issues & Material Facts ¶ 106,11 there is evidence that ARMR was

“kind of defunct” by the time SAIC entered the 1999 contract, see

Loiselle Test., 7/7 p.m. Tr. at 48:19-21.   Thus, a reasonable

jury could find that Motl in his individual capacity, and not

SAIC, was involved with ARMR and that Motl’s later involvement

with the 1999 contract did not produce bias in SAIC’s work for

the NRC because the ARMR was “defunct” by that time.

     As is discussed above, SAIC’s work with Alaron and PHP never

progressed beyond conceptual, planning stages.   Because SAIC

never engaged in work with Alaron or employed the PHP concept, a

reasonable jury could find that these projects did not create

OCIs because they did not create a potential to produce bias in

SAIC’s work for the NRC.

            3.   Materiality of conflict of interest obligations

     The government argues that there is no genuine dispute of

material fact that SAIC’s conflict of interest obligations were

material.   See U.S. Reply (Falsity) at 23 n.18; see also U.S.

Mem. (Falsity) at 29-31.    At trial, “[n]umerous witness[es] from

both the NRC and SAIC testified that the OCI obligations in

SAIC’s contracts with the NRC were important to the overall

purpose of the contract.”   SAIC II, 653 F. Supp. 2d at 103; see


     11
       There is evidence that Motl did not play a key role in
the 1992 contract, see Mem. of P. & A. in Supp. of Def. SAIC’s
Opp’n to Pl. U.S.’ Mot. for Partial Summ. J., Ex. 54 (SAIC’s
Request for Proposal (Jan. 23, 1992)) (not listing Motl as a
management/technical lead or technical support).
                                -43-

also SAIC III, 626 F.3d at 1271 (quoting SAIC II, 653 F. Supp. 2d

at 103).   However, there is also evidence that SAIC did not

understand that payment from the NRC was conditional on SAIC’s

compliance with its conflict of interest obligations.   See, e.g.,

Martin Test., 7/14 a.m. Tr. at 54:5-20 (testifying that SAIC

agreed to the conflict of interest obligations so that SAIC would

be awarded the contract but that “getting paid and signing the

contract” were “mutually exclusive”); Rodehau Test., 7/7 a.m. Tr.

18:13-19:8 (testifying that he believed that SAIC had to certify

whether it had conflicts but that SAIC would be paid whether it

certified that it did or did not have conflicts).   Thus, there

are genuine disputes of material fact regarding whether SAIC’s

conflict of interest obligations were material.

     Because SAIC has provided sufficient evidence for a

reasonable jury to find that its challenged business

relationships did not violate its OCI obligations and that the

obligations were not material, the government’s motion for

summary judgment will be denied.

     C.    Statements or records made “to get” false claims paid

     The government argues that “the undisputed facts demonstrate

that SAIC made and used false statements regarding its lack of

OCIs to get its claims paid.”   U.S. Mem. (Falsity) at 31.   As

used in 31 U.S.C. § 3729(a)(2), “to get” denotes a defendant’s

purpose of getting the government itself to pay the claim.
                                 -44-

Allison Engine Co., Inc. v. United States ex rel. Sanders, 553

U.S. 662, 668-69 (2008).

        Here, there was evidence at trial that SAIC made statements

about its OCIs directly to the NRC “for the purpose of having

[its] claims paid.”    SAIC II, 653 F. Supp. 2d at 104-05.   For

example,

        Rodehau testified that SAIC had to agree to the
        provisions regarding OCIs in its NRC contract to be
        eligible for an award of the contract and to receive
        payment under the contract, and that a violation of the
        OCI provisions could result in termination of the
        contract. SAIC’s Martin also testified that in
        response to the NRC’s cure notice seeking additional
        information regarding SAIC’s OCIs, SAIC submitted a
        response to the NRC that SAIC intended the NRC to rely
        on when deciding whether to terminate its contract with
        SAIC.

Id. at 105 (internal citations omitted).    However, Rodehau also

agreed at trial that he had never “submit[ted] to the NRC any

representation that SAIC had no OCIs just in order to get the

company’s claims paid.”    Rodehau Test., 7/7 a.m. Tr. at 30:25-

31:2.    Martin also testified that when he received a modification

of the 1992 contract, he did not make his OCI representation to

get any of SAIC’s claims paid.    See Martin Test., 7/14 p.m. Tr.

at 60:7-9.    Drawing all justifiable inferences in favor of SAIC,

there is a genuine dispute as to whether SAIC made statements “to

get” the NRC to pay its claims.
                               -45-

II.   FCA DAMAGES

      A.   1992 contract

      SAIC argues that the government is barred under the issue

preclusion or law of the case doctrines from recovering more than

$78 in FCA damages under the 1992 contract because the proper

measure of FCA damages articulated in SAIC III is “identical” to

the breach of contract damages actually and necessarily decided

by the jury.   See Def. SAIC’s Mot. for Summ. J. on Damages (“SAIC

Mot. (Damages)”), Mem. of P. & A. in Supp. of Def. SAIC’s Mot.

for Summ. J. on Damages (“SAIC Mem. (Damages)”) at 16-25.12    The

government counters that it is not precluded from arguing that it

is entitled to more than $78 in FCA single damages because FCA

damages and breach of contract damages are not the same issue and

thus, FCA damages were not decided by the jury.   U.S. Mem. in

Opp’n to Def. SAIC’s Mot. for Partial Summ. J. on Damages (“U.S.

Opp’n (Damages)”) at 12.

      SAIC argues that breach of contract damages and FCA damages

in this case are the same issue.   In SAIC III, the court of

appeals held that in this case, “[t]o establish [FCA] damages,

the government must show not only that the defendant’s false

claims caused the government to make payments that it would have

otherwise withheld, but also that the performance the government



      12
       For the reasons discussed above, see supra note 10, law
of the case and not issue preclusion applies in this context.
                                 -46-

received was worth less than what it believed it had purchased.”

SAIC III, 626 F.3d at 1279.     This is because the fact-finder

should base “damages on the amount the government actually paid

minus the value of the goods or services the government received

or used.”    Id.

     SAIC contends that in holding that FCA damages should be

calculated using the benefit of the bargain measure described,

the D.C. Circuit “adopted a measure of FCA damages that is

identical to the standard used by the jury to calculate the

Government’s $78 award of breach-of-contract damages.”    SAIC Mem.

(Damages) at 22.   At trial, the jury was instructed that “[t]he

measure of damages for a breach of contract is that amount of

money necessary to place the injured party in the same economic

position it would have been if the contract had not been

breached.”   Final Jury Instructions, 7/28 a.m. Tr. at 24:2-6.

The jury was further instructed that the government is entitled

only to “damages that were foreseeable at the time the contract

was made.”   Id. at 24:13-14.

     Breach of contract damages include “(a) the loss in the

value to him of the other party’s performance caused by its

failure or deficiency, plus (b) any other loss, including

incidental or consequential loss, caused by the breach, less

(c) any cost or other loss that he has avoided by not having to

perform.”    Restatement (Second) of Contracts § 347 (1981).   Thus,
                                 -47-

to calculate damages, a jury should “first determine the amount

of money the plaintiff would have received had the contract not

been breached.   Next, add both incidental damages and

consequential damages, if any.    Lastly, subtract from that any

money [the plaintiff] saved because [the plaintiff] did not have

to complete the contract.”   D.C. Std. Civ. Jury Instr. No. 11-31

(Breach of Contract -- Damages).    Additionally, contract damages

are recoverable only if they were reasonably foreseeable when the

parties formed the contract.   See Sears, Roebuck & Co. v. Goudie,

290 A.2d 826, 832 (D.C. 1972).    SAIC does not address whether FCA

damages also include incidental and consequential damages and

whether they are reduced by any avoidance costs.   Similarly, SAIC

does not discuss whether FCA damages must also be foreseeable.

Thus, SAIC has not shown that breach of contract damages decided

by the jury is the “same issue” as FCA damages.    Because SAIC has

not shown that breach of contract damages and FCA damages are the

same, its motion for summary judgment regarding the 1992 contract

damages will be denied.13


     13
       SAIC argues that the D.C. Circuit explicitly confirmed
that the jury’s breach of contract damages calculation is
identical to the FCA damages. SAIC Mem. (Damages) at 16-17. In
recognizing the “difficulty the jury will face in calculating the
value of services tainted by potential conflict,” the D.C.
Circuit confirmed that the jury can make such a calculation
noting that “the district court’s breach of contract instruction
asked the jury to make just such a valuation.” SAIC III, 626
F.3d at 1280. The D.C. Circuit’s acknowledgment that the jury
was asked to value the services SAIC provided as part of the
breach of contract damages calculation does not equate with the
                                -48-

     B.     1999 contract

     SAIC moves for summary judgment on the government’s claim

that it incurred FCA damages under the 1999 contract arguing that

“the Government has failed to produce any evidence that the value

of SAIC’s work under that Contract was less than what the

Government paid for it.”    SAIC Mem. (Damages) at 25.

     The government is seeking “the total amount paid by the

United States under the 1999 Contract” as single damages for

SAIC’s allegedly false claims and statements made under the 1999

Contract.   See SAIC Mem. (Damages), Ex. 24 (The U.S.’s Am. Obj’ns

& Resps. to Def. SAIC’s 2d Set of Interrogs. at 4).      In this

case, the government’s damages are “the amount of money the

government paid due to SAIC’s false claims over and above what

the services the company actually delivered were worth to the

government.”   SAIC III, 626 F.3d at 1279.   Thus, to recover the

full amount that the government paid, the government must show by

a preponderance of the evidence “that the value of SAIC’s advice

and assistance was completely compromised by the existence of

undisclosed conflicts, making the full amount paid to SAIC the

proper measure of damages.”   Id. at 1279-80.

     SAIC argues that the government cannot show that it suffered

any damages as a result of SAIC’s allegedly false claims and



court adopting the contract damages’ calculation as the proper
measure of FCA damages and SAIC has not demonstrated otherwise.
                               -49-

statements under the 1999 contract for at least three reasons.

First, “[i]n early 2000, the NRC and SAIC agreed to terminate the

[1999] contract and entered into a ‘no-cost’ settlement.”    SAIC

Mot. (Damages), Def. SAIC’s Stmt. of Undisputed Material Facts in

Supp. of its Mot. for Summ. J. on Damages (“SAIC Stmt.

(Damages)”) ¶ 16.   Under the agreement, SAIC agreed to forego

payment of an outstanding invoice for work that SAIC completed

after November 26, 1999.   Id.; see also SAIC Mem. (Damages), Ex.

13 (Modification No. 1 Under Contract NRC-04-99-046 ¶ 1 at 2).

SAIC contends that there is “no better valuation of the services

. . . ‘actually delivered’ than the amount agreed upon in an

arms-length negotiation after the Government is aware of the

deficiency.”   SAIC (Damages) at 27 (quoting SAIC III, 626 F.3d at

1279) (internal citations omitted).   Thus, SAIC argues that the

March 2000 no-cost settlement agreement is “conclusive evidence

of the value that the NRC believed it had received for the work

SAIC performed under the 1999 Contract.”   Id. at 27.    While SAIC

may argue at trial that the no-cost settlement agreement is

evidence of the value the government placed on SAIC’s services,

there is evidence that the agreement does not reflect the value

of SAIC’s services.   For example, Mary Mace, the contracting

officer at the NRC for the 1992 and 1999 contracts, testified

that in executing the agreement, it was important to her that the

agreement include nonpayment of a particular invoice to “get [the
                                 -50-

termination of the contract] over with” and avoid “prolonged

litigation.”    See Mace Test., 7/18 p.m. Tr. 106:14, 107:4-11,

110:9-19.    Based on Mace’s testimony, a reasonable jury could

conclude that the purpose of the no-cost settlement was for the

NRC to avoid having to pay the outstanding invoice or an attempt

to avoid litigation and was not a reflection of the value that

the NRC placed on SAIC’s services.      Therefore, SAIC has not shown

that the no-cost settlement agreement is conclusive evidence of

the value that the government placed on SAIC’s services under the

1999 contract.

        Second, SAIC asserts that “[t]he Government’s pursuit of FCA

damages under the 1999 Contract is also inconsistent with the

undisputed record evidence that SAIC delivered high-quality,

technically sound work product to the NRC.”     SAIC Mem. (Damages)

at 27-28.    There is evidence in the record that SAIC provided

“extremely high” quality work to the NRC and that the NRC

continued to use SAIC’s work even after it discovered the alleged

OCIs.    See, e.g., Robert Meck Test., 7/3 p.m. Tr. 21:2-3

(government’s witness); Ashok Thadani Test., 7/21 a.m. Tr. 40:17-

19 (SAIC’s witness).    However, there is also evidence that

despite the quality of SAIC’s work, it was less valuable to the

government than work free from OCIs would have been.     For

example, after learning of the OCIs, rather than abandon SAIC’s

work product, the NRC commissioned a center to conduct an
                                    -51-

independent peer review of SAIC’s work.         SAIC Stmt. (Damages)

¶ 23.        Cheryl Trottier, an NRC employee who oversaw SAIC’s work

for the NRC, testified in her deposition that the government was

unable to use SAIC’s work as the technical basis for the NRC’s

rulemaking as originally planned because of SAIC’s alleged OCIs

and the public’s resulting distrust of SAIC’s work product.            U.S.

Opp’n (Damages), Ex. 7 (“Trottier Dep.” at 52:4-53:10); see also

id. at 42:20-43:14.        Trottier also implied that SAIC’s work was

worthless to the government because the only way the government

could have erased any trace of bias was to completely redo the

work.        Id. at 25:21-27:19, 48:4-22, 49:23-50:12.    Accordingly,

there is a genuine dispute of material fact about whether the

value of SAIC’s services were less than the government paid.14

        Third, SAIC contends that the government cannot produce any

“non-speculative evidence of diminished value.”          SAIC Mem.

(Damages) at 29.       Under the FCA, the government bears the burden

of presenting sufficient evidence to allow the jury to determine

the amount of damages it is owed.          See SAIC III, 626 F.3d at



        14
       To the extent that SAIC argues that undisputed evidence
showing that it provided to the government high quality work bars
the government from arguing that it is entitled to FCA damages,
the D.C. Circuit has already explained that this is not the case.
In SAIC III, the court reasoned that “a jury could rationally
conclude that no matter how technically proficient SAIC’s
performance, the value of that performance to the NRC was
compromised by the appearance of bias created by the company’s
failure to live up to its contractual conflict of interest
obligations.” SAIC III, 626 F.3d at 1278.
                                -52-

1280.   “[D]amages must be proven with reasonable certainty.”

United States ex rel. Ervin & Assocs., Inc. v. Hamilton Sec.

Grp., Inc., 370 F. Supp. 2d 18, 55 (D.D.C. 2005).    Thus, a jury’s

damages calculation cannot be “based on speculation or

guesswork.”   Joel M. Androphy, Federal False Claims Act and Qui

Tam Litigation § 11.08 (2013) (citing United States v. Killough,

848 F.2d 1523, 1531 (11th Cir. 1988)).   There is non-speculative

testimony from at least three witnesses -- Trottier, Frank

Cardile, and McKezie-Carter -- that SAIC’s services had less

value to the NRC than the amount the NRC paid for the work.     As

is discussed above, Trottier testified in her deposition that she

believed that the NRC could not base its potential rule on SAIC’s

work because of the OCIs.   She based her conclusion, in part, on

comments made at public meetings convened to discuss the NRC’s

potential rulemaking.   See Trottier Dep. at 25:21-27:19.

Similarly, Cardile testified that SAIC’s OCIs “complicated [the

NRC’s] ability to move ahead with rule-making” and based on

comments made at the public meetings.    See Cardile Test., 7/2

a.m. Tr. at 45:12-46:21.    McKenzie-Carter agreed in his

deposition that “the fact that NRC was receiving letters from

Congresspersons about [SAIC’s conflict of interests], had a

negative impact on the [NRC’s attempted] rulemaking.”    U.S. Opp’n

(Damages), Ex. 11 (McKenzie-Carter Dep. at 245:5-9).    These

potential witnesses’ testimonies are based on more than their
                                 -53-

“mere speculation.”   Accordingly, there is sufficient evidence

for a jury to find that the government is owed damages.

                       CONCLUSION AND ORDER

     There is sufficient evidence for a reasonable jury to find

that SAIC knew that its claims and statements were false, but

also that SAIC’s challenged business relationships did not create

potential or actual OCIs.     Because SAIC has not shown that the

amount of FCA damages under the 1992 contract is the “same issue”

as the breach of contract damages, the government is not

precluded from arguing that it is entitled to FCA damages under

the 1992 contract beyond $78.    The government provided sufficient

evidence to show that there is a genuine dispute as to the value

of SAIC’s services provided under the 1999 contract.

Accordingly, it is hereby

     ORDERED that SAIC’s motion [196] for summary judgment on FCA

liability be, and hereby is, DENIED.    It is further

     ORDERED that the government’s motion [195] for partial

summary judgment regarding the element of falsity be, and hereby

is, DENIED.   It is further

     ORDERED that SAIC’s motion [197] for partial summary

judgment on FCA damages be, and hereby is, DENIED.      It is further

     ORDERED that the parties appear for a scheduling conference

on September 5, 2013 at 9:45 a.m.
                          -54-

SIGNED this 22nd day of July, 2013.



                                 /s/
                          RICHARD W. ROBERTS
                          Chief Judge
