Opinion
Civil Action No. 94-4135, SECTION "I" (4).
April 20, 1998
MEMORANDUM OPINION
Bryan Blades initiated this suit under the False Claims Act (FCA), 31 U.S.C. § 3729, et seq., alleging that defendant Lisa Gonzales knowingly misrepresented employment information to the Louisiana Department of Social Services, Child Care Assistance Program to obtain federally funded benefits.
The False Claims Act allows private citizens to initiate and prosecute such suits known as "qui tam" actions on behalf of the Government, 31 U.S.C. § 3730(b). Blades properly notified the Government of the action. The Government declined to proceed with the suit, thereby authorizing Blades to conduct the action. See 31 U.S.C. § 3730(c)(3).
Blades presented his claim to the court in a bench trial. For the following reasons, the court finds that Blades failed to meet his burden of proof on the issue of scienter.
The FCA imposes liability on any person who "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." 31 U.S.C. § 3729(a)(1).
A person who submits a false claim is liable for a civil penalty of not less than $5,000 and not more than $10,000 regardless of whether the submission causes the Government any damage, plus three times any damages that the Government suffers because of the false claim. 31 U.S.C. § 3729(a). The plaintiff must share this award with the Government as a bounty. 31 U.S.C. § 3730(d)(2). A prevailing plaintiff also is entitled to reasonable expenses and attorneys fees and costs. Id.
The burden of proof in an FCA action is on the plaintiff to prove his claim by a preponderance of the evidence. 31 U.S.C. § 3731(c). The plaintiff must show that the claim was false and that the defendant acted knowingly.
"[K]nowing" and "knowingly", mean that a person, with respect to information —
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the information; or
(3) acts in reckless disregard of the truth or falsity of the information,
and no proof of specific intent to defraud is required.31 U.S.C. § 3729(b). Innocent mistakes or negligence are not actionable under this section. See Hindo v. University of Health Sciences, 65 F.3d 608 (7th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 915, 133 L.Ed.2d 846 (1996); United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1420 (9th Cir. 1991).
The court finds the facts in this case as follows. When Gonzales was divorced, she began attending school and receiving child care benefits through the Louisiana Department of Social Services, Child Care Assistance Program, a federal program which provides funds to the child care providers of people who meet certain eligibility criteria. The criteria are a minimum of twenty hours per week of school and/or work with compensation for work at an hourly rate of at least minimum wage. The weekly hours cannot be averaged. At the time in question, the minimum wage was $4.25 per hour. The amount of child care assistance provided by the program depends on the number of persons in the household and the amount earned.
When Gonzales took a part-time job with the Louisiana Eye Center, she was obliged to inform Social Services about her time and hours. Gonzales attended eight hours of school a week, so she needed to work at least twelve hours a week to be eligible for benefits. Gonzales telephoned Social Services about two weeks after she started work and advised them about the terms of her employment.
Gonzales' job with the Eye Center was to perform free eye screenings to the public at various locations like nursing homes and shopping centers in New Orleans and surrounding areas. The Eye Center paid her $50.00 for each screening. Each screening usually lasted about two to three hours. The number of screenings she performed varied week-by-week. Commonly she performed one to two screenings per week, but sometimes as many as five.
Gonzales told the Eye Center secretary that Social Services needed a letter with her weekly hours broken into an hourly rate. Social Services received a letter from the Eye Center signed by Kelly Theriot, the eye screening director, stating that Gonzales "works part-time in our office . . . 12-hours-a-week at $4.25 hour. [sic]"
To succeed on his FCA claim, the plaintiff must show the required scienter by a preponderance of the evidence. The evidence in this case shows that Gonzales worked a total of nineteen weeks at the Eye Center. Her supervisor, Kelly Theriot, maintained time sheets reflecting the time Gonzales spent conducting each eye screening session. The time sheets do not include the time it took to drive to the screening locations. There is no evidence to establish the time Gonzales spent driving to and from screenings. The court finds that the driving time could have been included to satisfy the eligibility requirements. Without such evidence, the court is unable to determine the number of hours Gonzales worked each week.
If the court were to estimate distance and driving time based on its knowledge of the New Orleans area and local maps, it would appear unlikely that Gonzales would have met the time requirement more than half the weeks she worked or that her hourly pay would have been less than $8.00 an hour. The court declines to engage in any such guesswork.
Gonzales' admission that she did not work twelve hours every week does not establish the requisite scienter. When Gonzales contacted Social Services, she did not know how many screenings she would perform each week. There is no evidence that she kept a record of the hours she worked. According to Gonzales, she did not tell the Eye Center what to state in the letter, and there is no evidence that she received a copy of the letter. Blades did not call Theriot or the Eye Center secretary to testify as to how the letter came to be drafted. When Blades confronted Gonzales about the letter, Gonzales asked him for a copy of her time sheets, which he refused to give her.
At most, Gonzales was negligent in this case. There is not a preponderance of evidence to establish that she had actual knowledge of the content of the letter or that she deliberately or recklessly disregarded the truth or falsity of that information.
Accordingly,
IT IS ORDERED that judgment be entered in favor of defendant Lisa Gonzales and against plaintiff Bryan Blades, individually and on behalf of the United States Government, dismissing all claims of the plaintiff against the defendant, plaintiff to bear costs.