United States ex rel. Palmieri v. Alpharma, Inc.

647 F. App'x 166

Opinion

Vacated and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Relator Jerome Palmieri appeals the district court’s dismissal of his qui tam complaint against his former employer, Alpharma, Inc., and associated companies (collectively, “Defendants”), under the False Claims Act (“FCA”). The district court dismissed Palmieri’s complaint pursuant to Fed.R.Civ.P. 9(b), for failure to plead his claims of fraud with sufficient particularity. In so ruling, the district court did not address Defendants’ arguments that Palmieri’s claims were precluded by the FCA’s first-to-file bar, 31 U.S.C. § 3730(b)(5) (2006),

Footnotes

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* and public-disclosure bar, 31 U.S.C. § 3730(e)(4)(A) (2006), amended by Patient Protection & Affordable Care Act, Pub.L. No. 111-148, tit. X,. sec. 10104(j)(2), 124 Stat. 119, 901-02 (2010).

Under the pre-2010 version of § 3730 that governs Palmieri’s action, see United States ex rel. May v. Purdue Pharma L.P., 737 F.3d 908, 915 (4th Cir.2013) (recognizing “that the 2010 FCA amendments may not be applied to cases arising before the effective date of the amendments”), both the first-to-file and public-disclosure defenses are jurisdictional in na ture, see id. at 914-18, 920 (§ 3730(e)(4)(A)); United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 181 (4th Cir.2013) (§ 3730(b)(5)), rev’d in part on other grounds, Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, — U.S.-, 135 S.Ct. 1970, 191 L.Ed.2d 899 (2015). We conclude, therefore, that the district court was obligated to consider both defenses before assessing the sufficiency of Pahnieri’s complaint. Accordingly, we vacate the district court’s order and remand this case for consideration in the first instance of whether the FCA’s first-to-file bar or public-disclosure bar deprived the district court of subject-matter jurisdiction.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED.

The current version of § 3730(b)(5) is identical to the version in effect at the time Palmieri’s darais arose.