UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA ex rel. USN4U, LLC, │ Relator-Appellant, │ > No. 20-4246 │ v. │ │ WOLF CREEK FEDERAL SERVICES, INC.; ANTHONY │ SANTILLO; CHRISTOPHER LOGAN; TIMOTHY TESCH, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cv-00558—Dan A. Polster, District Judge.

Argued: June 9, 2021

Decided and Filed: May 16, 2022

Before: ROGERS, WHITE, and MURPHY, Circuit Judges.

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COUNSEL ARGUED: Logan Trombley, THE LAW OFFICES OF WARNER MENDENHALL, Akron, Ohio, for Appellant. Philip S. Kushner, KUSHNER & HAMED CO., L.P.A., Cleveland, Ohio, for Appellees. ON AMICUS BRIEF: Charles W. Scarborough, Joshua Dos Santos, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF AND RESPONSE TO AMICUS: Logan Trombley, THE LAW OFFICES OF WARNER MENDENHALL, Akron, Ohio, for Appellant. Philip S. Kushner, Brandon Mordue, KUSHNER & HAMED CO., L.P.A., Cleveland, Ohio, for Appellees.

ROGERS, J., delivered the opinion of the court in which WHITE and MURPHY, JJ., joined. MURPHY, J. (pp. 14–19), delivered a separate concurring opinion. No. 20-4246 U.S. ex rel USN4U, LLC, et al. v. Wolf Creek Fed Srvs, et al. Page 2

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OPINION _________________

ROGERS, Circuit Judge. In this qui tam action under the False Claims Act, relator USN4U alleges that Wolf Creek Federal Services and several of its employees submitted falsely inflated project estimates to the National Aeronautics and Space Administration (NASA) for facilities maintenance projects to be performed by Wolf Creek, resulting in the negotiation of fraudulently induced, exorbitant contract prices. Relying in part on NASA’s subsequent decision to pay the invoices and continue to contract with Wolf Creek, and on the Government’s decision not to intervene in USN4U’s claim, the district court dismissed the suit for failure to allege that Wolf Creek’s work order proposals were materially false or caused NASA to pay the allegedly exorbitant prices. USN4U’s amended complaint, however, adequately alleged fraud, notwithstanding NASA’s later contractual decisions and the fact that the Government declined to intervene.

Wolf Creek is a federal contractor that, among other things, provides facilities management and maintenance services. In September 2013, NASA awarded Wolf Creek a contract to operate and maintain the facilities at the NASA Glenn Research Center. The alleged false claims in this case occurred under the indefinite-delivery-indefinite-quantity (“IDIQ”) portion of the contract. The IDIQ portion of the contract allows NASA to approve specific projects for Wolf Creek to perform on a firm-fixed-price basis. Under this process, NASA receives a work request from a NASA employee and assigns the work request to the appropriate contract. If Wolf Creek is chosen to complete the project, the computerized maintenance management system produces a work order, which is a formal document directin