BJCTA Order March 7, 2023

Case 2:18-cv-00567-CLM Document 274 Filed 03/07/23 Page 1 of 44 FILED
2023 Mar-07 PM 02:01

U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STARR CULPEPPER, et al.,

Plaintiffs,
v. Case No. 2:18-cv-567-CLM
BIRMINGHAM JEFFERSON
COUNTY TRANSIT AUTHORITY,
et al.,
Defendants.
ORDER
The court rules on the post-trial motions as follows:
• The court denies the BJCTA’s Rule 50(b) motion (doc. 239), which
means the jury’s verdict against the BJCTA on Count III stands;
• The court grants Relators’ Rule 50(b) motion (doc. 240), which means
the base damage amount for Count III is $1,438,467.74, resulting in
a treble damage award of $4,315,403.22; and,
• The court grants in part and denies in part Relators’ motion for
civil penalties (doc. 253) and penalizes the BJCTA $14,000 for each of
its 22 violations of the False Claims Act, resulting in a penalty award
of $308,000.
BACKGROUND
A. The Jury’s Verdict
This case is about the BCJTA’s failure to comply with the Brooks Act
when using federal grants to pay for Strada’s work on Birmingham’s Bus Rapid
Transit (BRT) Project. Relators presented these claims to the jury:
• Count III: the BJCTA and its executive director Barbara

Murdock violated the False Claims Act by falsely implying
compliance with the Brooks Act each time they requested
federal grant money to pay for Strada’s work;
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Case 2:18-cv-00567-CLM Document 274 Filed 03/07/23 Page 2 of 44
• Count III: Strada and its owner Edmund Watters violated

the False Claims Act by making a false on-call contract, false
invoices, and false task orders material to the BJCTA and
Murdock’s false claims to the FTA;
• Count V: the four Defendants conspired with each other to

violate the False Claims Act; and,
• Count VI: the BJCTA fired Relator Starr Culpepper because

she complained to BJCTA executives about the BJCTA’s
ongoing violations of the Brooks Act.
The jury found that Relators proved the BJCTA falsely implied
compliance with the Brooks Act when asking for federal grant money to pay
for Strada’s work and awarded the Government compensatory damages.
The jury rejected all of Relators’ other claims. The jury found that
Murdock did not know that the BJCTA was falsely implying compliance with
the Brooks Act when the BJCTA submitted its reimbursement requests, and
that neither Strada nor Watters made false records or statements material to
the BJCTA’s reimbursement requests. So the jury also found that Murdock,
Strada, and Watters were not conspiring with the BJCTA to submit false
claims. Finally, the jury found that Culpepper failed to prove that she acted to
stop the BJCTA from violating the Brooks Act.
Culpepper doesn’t challenge the jury’s finding against her, so the court
won’t discuss it further. Both sides, however, challenge some part of the jury’s
verdict against the BJCTA on Count III. So the court recounts the facts
produced at trial that support the jury’s finding that the BJCTA violated the
False Claims Act while Murdock, Strada, and Watters did not.
B. The Trial Evidence
1. Strada secures the BRT Project: Birmingham was awarded the World
Games in January 2015. The City wanted to build a rapid bus system in time
for the Games. Two companies pitched ideas to make it happen.
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Birmingham-based Strada Professional Services LLC (Strada) proposed

a plan that would run the BRT system through downtown and into inner city
neighborhoods. Atlanta-based Whitman, Requart & Associates (WRA)
proposed to extend the system further into suburbs like Mountain Brook.
The City chose Strada, although the parties disagree as to why. Murdock
testified that the City chose Strada because WRA’s plan to extend the system
into wealthy suburbs like Mountain Brook would have prevented the City from
using certain federal funds that target impoverished neighborhoods like
Woodlawn and West End. But Relators say the City chose Strada because the
mayor was friends with Strada’s owner, Edmond Watters.
In any event, Strada submitted an original and revised proposal in May

2015 that would create a Program Management Office that coordinated efforts
among the City, the BJCTA, and the Regional Planning Commission. (Tr. Ex.
123 at 8-33). Strada proposed that the City name Strada the Project Manager
and Watters the Project Leader. (Id.).
Three days after Strada sent the revised proposal, the City Council
resolved to make an agreement that would pay Strada $1.5 million per year to
manage the BRT program. (Id. at 35). Watters and the mayor signed the
agreement in early 2016. (Id. at 50).
2. The federal grants: In June 2015—one month after the City Council
passed the Strada resolution—Strada worked with the City and the BJCTA to
secure a $20 million federal TIGER grant to help fund the City’s work on the
BRT project. As for funding the BJCTA’s work, the BJCTA asked the FTA to
allow it to use the balance of existing Grants AL-03-0058 and AL-03-0077 on
the BRT Project. (See Tr. Ex. 1, 2).
3. Brooks Act Procurement: To use federal grant funds to pay for

architectural and engineering (A&E) services, the BJCTA had to follow the
Brooks Act and FTA Circular 4220.1F. As the court explained in its summary
judgment opinion (doc. 206, pp. 20-25), the Brooks Act required the BJCTA to
follow this 3-step process for each A&E project that would be paid for with
federal grant monies:
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o Step 1: The BCJTA must discuss, “with at least 3 firms,”

“anticipated concepts and compare alternative methods for
furnishing services;”
o Step 2: The BJCTA must select, “in order of preference, at least

3 firms that the [BJCTA] considers most highly qualified to
provide the services required[;]” and,
o Step 3: The BJCTA must negotiate a contract “with the most

highly qualified firm” from Step 2. If that negotiation fails, the
BJCTA must then negotiate “with the next most qualified of the
selected firms” from Step 2. The BJCTA must continue
negotiating in ranking order until a contract is signed.
40 U.S.C. § 1103(c) (Step 1); § 1103(d) (Step 2); § 1104(b) (Step 3).
In line with Step 1, the BJCTA issued a Request for Qualification from
A&E firms on June 3, 2015. (Tr. Ex. 95, “RFQ 15-17”). RFQ 15-17 said that the
BJCTA would “make a single award.” (Id., ¶ 1.26).
Five firms submitted their qualifications. The BJCTA convened an

independent group of evaluators, who ranked the submissions like this:
(Tr. Ex. 24, p. 3). As you can see, the committee ranked WRA (the firm the City
rejected) first, and it ranked Strada (who the City had already resolved to hire
as the BRT project manager) third.
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4. The BJCTA Task Orders: The independent committee issued its

rankings on July 15, 2015. But the BJCTA did not negotiate a contract with
#1-ranked WRA to perform the work described in RFQ 15-17.
Instead, on October 1, 2015, the BJCTA and Strada signed a contract for
Strada to provide the services described in RFQ 15-17. (Tr. Ex. 113). Barbara
Murdock signed and dated the contract for the BJCTA under the title, “Interim
Executive Director.” (Id., p. 9). But Murdock couldn’t explain how she could
have signed the Strada contract as interim director on “10-1-15,” because she
didn’t become Interim Executive Director until October 9th. She speculated
that the contract was backdated, but wasn’t sure what happened—other than
to say that, at the time, she “was directed by the Board and by attorneys as to
what to do.” (Trans. 140-142).
Similarly, Murdock testified that it was not her “regular habit” to sign
agreements with vendors like Strada before the Board gave her approval.
(Trans. 176). Yet, the Board didn’t pass the resolution that allowed Murdock
“to contract with the STRADA, Wendel, and WR&A to perform tasks” under
RFQ 15-17 until October 28, 2015—i.e. 27 days after Murdock signed the
contract with Strada. (Tr. Ex. 93).
Murdock eventually signed a contract with #2-ranked Wendel in April

2016 (Tr. Ex. 115) and #1-ranked WRA in June 2016 (Tr. Ex. 117). But neither
firm performed any work under RFQ 15-17 before Relators filed their
complaint in April 2018. Nor did the BJCTA ask either firm if it was qualified
or interested in performing any of the work.
Instead, Strada performed all 33 task orders between October 2015 and
April 2018. The BJCTA reimbursed Strada for the work it did under Task
Orders 7, 7a, 7b, 12, and 24 from the two grants that the FTA converted at the
BJCTA’s request in July 2015 and a grant that the FTA awarded the BJCTA
in February 2015 (Grant 95-X007).
According to Murdock, the FTA knew that Strada was doing all of the
BRT-related work from 2015 to April 2018—including the grant-funded work
in Task Orders 7, 7a, 7b, 12, and 24—because the City, the BJCTA, and Strada
would go to the FTA’s regional office in Atlanta, and the FTA “would give us
direction as to what would come next.” (Tr. Trans. 322). For example, Murdock
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testified that the FTA asked the BJCTA and Strada to perform the “NEPA”
and “Historic Property and Cultural Resources” work that ended up in Task
Order 12. (See Tr. Trans. 323-25; Tr. Ex. 1, p. 8 (Grant AL-03-0058)). After
these meetings, Strada would draft the task orders and set a price; the BJCTA
would review and propose edits; and then the BJCTA would assign the task to
Strada—without negotiating the project with WRA or Wendel.
5. FTA intervention: Relators filed their qui tam complaint under seal
on April 9, 2018. (Doc. 1). Soon after, the FTA asked the City to explain how it
chose Strada to serve as the Program Manager for the BRT Project. On May
24th, the City sent Strada a check for its unpaid work and told Strada to stop
all BRT-related work until further notice. (Tr. Ex. 45).
The next month (June 2018), the FTA suspended the City’s use of the
ECHO system that disbursed the City’s $20 million TIGER grant. (Tr. Ex. 61,
p. 6). The City responded to the FTA’s questions in October. Because the City
had no documents that showed “a competitive procurement for Professional
Services,” the FTA demanded the City return all of the grant funds ($261,854),
plus interest. (Id.). The FTA told the City that it would not reopen the City’s
access to the TIGER grant funds until the City had paid back the entire
amount. The City complied.
In November, the FTA similarly asked the BJCTA to explain its process
for awarding all A&E work to Strada. (Tr. Ex. 24, p. 2). Unlike the City, the
BCJTA had papers. It sent the FTA a copy of RFQ 15-17; the independent
committee members’ evaluation forms and notes; and, the October 2015
Resolution that gave Murdock the authority to sign on-call contracts with
WRA, Wendel, and Strada. (Tr. Ex. 24). At first, an FTA Program Manager
said that, based on these documents, the FTA was “satisfied that the
procurement of design services for grants AL-03-0058 (New Starts Grant) and
AL-95-X007 (CMAQ Flex Grant) were procured through open competition.”
(Tr. Ex. 28, p.1). But the FTA later clarified that “‘satisfied’ is probably not the
correct term at this time. We still need to have a few more people to look at the
documentation that was submitted.” (Id.). Ultimately, the FTA took no
position; the BCJTA kept the disputed money; and Relators tried the case to
the jury on behalf of the Government.
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6. Post-trial briefing: That brings us back to where we started—i.e., the

jury’s verdict that the BCJTA alone violated the False Claims Act by falsely
implying compliance with the Brooks Act when it submitted requests for
federal grant monies. The BJCTA asks the court to issue a judgment as a
matter of law on its behalf because, it says, Relators failed to present sufficient
evidence on three elements: falsity, scienter, and materiality. (Doc. 239).
Relators ask the court to issue them a judgment as a matter of law that
increases the jury’s damage award to 100% of the grant monies the BJCTA
used to pay Strada (doc. 240) and to assess penalties (doc. 253).
Because the United States will keep most of any award, the court asked
the Government to weigh in on falsity and the proper amount of damages. (Doc.
249). The Government agrees with Relators that Relators proved falsity and
that the proper damage amount is 100% of the grant monies that the FTA gave
the BJCTA. (Doc. 261).
STANDARDS OF REVIEW
1. Rule 50(b) Motion: In considering a motion for judgment as a matter

of law, the court views the evidence and draws all reasonable inferences in the
light most favorable to the nonmoving party. See Hubbard v. BankAtlantic
Bancorp, Inc., 688 F.3d 713, 724 (11th Cir. 2012). Judgment as a matter of law
is appropriate if “a reasonable jury would not have a legally sufficient
evidentiary basis to find for the [nonmoving party.]” Fed. R. Civ. P. 50(a). “Only
the sufficiency of the evidence matters; what the jury actually found is
irrelevant.” Hubbard, 688 F.3d at 724.
2. Motion for Penalties: The court must impose a penalty for each
violation of the False Claims Act. See 31 U.S.C. § 3729(a). The court can set
the per-act penalty between $13,508 and $27,018. See 28 C.F.R. § 85.5(a); table
1, column 7 (penalty amount for acts that occurred after November 2, 2015 and
assessed after January 30, 2023). The False Claims Act does not list factors for
the court to consider; those generally come from caselaw. The court will discuss
the factors it considered in the Discussion section.
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DISCUSSION
A. BJCTA’s Rule 50(b) Motion
The BCJTA argues that Relators failed to present sufficient evidence on

three elements: falsity, scienter, and materiality. The court addresses the
elements in that order.
1. Falsity (i.e., Implied False Certification)
As explained, the BJCTA could not use grant funds to pay for Strada’s
A&E work unless the BJCTA complied with the Brooks Act when it chose
Strada to do the work. It didn’t. So the jury found that the BJCTA submitted
a “false or fraudulent claim” under 31 U.S.C. § 3729(a)(1)(A) each time the
BJCTA drew down grant funds to reimburse Strada’s A&E work because the
BJCTA was falsely implying that it had complied with the Brooks Act.
The Supreme Court affirmed this “implied false certification” theory in

Universal Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 181
(2016). The court dives much deeper into Escobar in a moment. For now, the
Court’s conclusion matters most:
Accordingly, we hold that the implied certification theory can be a

basis for liability, at least where two conditions are satisfied: first,
the claim does not merely request payment, but also makes specific
representations about the goods or services provided; and second,
the defendant’s failure to disclose noncompliance with material
statutory, regulatory, or contractual requirements makes those
representations misleading half-truths.
Escobar, 579 U.S. at 190 (emphasis added). This court used the two-condition
test above to instruct the jury on the falsity element. (See Doc. 230, p. 9).
The BJCTA argues that Relators provided no evidence to prove the first
condition: “the claim does not merely request payment, but also makes specific
representations about the goods or services provided.” Escobar, 579 U.S. at
190. The BJCTA says that, when Stephanie Walker sought grant money from
the ECHO payment system, “[t]he only information [she] inputs into ECHO is
the ‘award number’ (i.e. the grant number) and the amount of payment being
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requested.” (Doc. 239, p. 13). The BJCTA argues that it can’t be held liable
under Escobar because neither the grant number nor the amount of money
requested “makes specific representations about the goods and services
[Strada] provided.” Escobar, 579 U.S. at 190.
This is half true. It’s true that Walker did not type a detailed description
of the tasks that Strada completed into the ECHO system. But it’s untrue to
say that Walker didn’t convey that information when she filled in the grant
number and amount requested. Those numbers were codes, filled with greater
meaning than mere digits on a screen.
As you’ll see, the Escobar Petitioner (United Health Services) conveyed

the services it provided by using codes too. Then you’ll see that the codes that
Walker typed into the ECHO system told the FTA much more about the
services that Strada provided than the codes that United Health Services gave
state Medicaid services in Escobar—codes that the Supreme Court found
sufficient to support the Relators’ implied false certification claim.
A. The use of codes in Escobar
1. The facts: Relator Julio Escobar was the stepfather of Yarushka

Rivera. Yarushka started having behavioral issues when she was 12. To help
deal with these issues, Yarushka saw five professionals at Arbour Counseling
Services (owned by Universal Health Services) over the next five years. One of
the five diagnosed Yarushka with bipolar disorder. Another prescribed
Yarushka medicine to treat bipolar disorder. The medicine caused two
seizures, the second of which killed Yarushka when she was 19.
Yarushka’s parents later discovered that only one of the five

professionals who treated Yarushka was properly licensed by the State of
Massachusetts. The psychologist who diagnosed Yarushka as bipolar got her
degree from an unaccredited internet college, and the State rejected her
application to be licensed as a psychologist. And the psychiatrist who
prescribed the medicine that caused Yarushka’s seizures was actually a nurse
who lacked authority to prescribe medicine without supervision.
The clinic and its director mispresented the employees’ qualifications

and license status to the Federal Government to obtain individual National
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Provider Identification (NPI) numbers. Arbour would then submit the NPI
numbers plus “payment codes corresponding to different services that its staff
provided to Yarushka, such as ‘Individual Therapy’ and ‘Family Therapy’” to
get reimbursed. Escobar, 579 U.S. at 184. By typing these two codes, Arbour
was telling the State that a “Social Worker, Clinical” provided a patient with
“Individual Therapy.” The State would then reimburse Arbour’s services with
Medicaid funds.
Yarushka’s parents sued Universal Health under the False Claims Act.
They alleged “that Universal Health (acting through Arbour) submitted
reimbursement claims that made representations about the specific services
provided by specific types of professionals, but that failed to disclose serious
violations of regulations pertaining to staff qualifications and licensing
requirements for these services,” id. at 184-85, and “[t]he Massachusetts
Medicaid program, unaware of these deficiencies, paid the claims.” Id.
After the district court dismissed the claim, and the circuit court
reinstated it, the Supreme Court granted cert to resolve a split “over the
validity and scope of the implied false certification theory.” Id. at 186.
2. The holding: The Court started with its holding: “When, as here, a
defendant makes representations in submitting a claim but omits its violations
of statutory, regulatory, or contractual requirements, those omissions can be a
basis for liability if they render the defendant’s representations misleading
with respect to the goods or services provided.” Id. at 187. The Court then
explained how it got there.
Because Congress did not define “false” or “fraudulent” in the FCA, the
Court looked to the common-law meaning of fraud, and from there, the common
law rule of half-truths:
We need not resolve whether all claims for payment implicitly

represent that the billing party is legally entitled to payment. The
claims in this case do more than merely demand payment. They
fall squarely within the rule that half-truths—representations
that state the truth only so far as it goes, while omitting critical
qualifying information—can be actionable misrepresentations. . . .
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[B]y submitting claims for payment using payment codes that

corresponded to specific counseling services, Universal Health
represented that it had provided individual therapy, family
therapy, preventive medication counseling, and other types of
treatment. Moreover, Arbour staff members allegedly made
further representations in submitting Medicaid reimbursement
claims by using National Provider Identification numbers
corresponding to specific job titles. And these representations were
clearly misleading in context. Anyone informed that a social
worker at a Massachusetts mental health clinic provided a teenage
patient with individual counseling services would probably—but
wrongly—conclude that the clinic had complied with core
Massachusetts Medicaid requirements (1) that a counselor
“treating children [is] required to have specialized training and
experience in children’s services,” 130 Code Mass. Regs. § 429.422,
and also (2) that, at a minimum, the social worker possesses the
prescribed qualifications for the job, § 429.424(C). By using
payment and other codes that conveyed this information without
disclosing Arbour’s many violations of basic staff and licensing
requirements for mental health facilities, Universal Health’s
claims constituted misrepresentations.
Id. at 188-89. As you can see, the payment codes told the state Medicaid office
that Arbour provided Yarushka with specific counseling services. That was
true information, hence the phrase “half-truth.” The untrue half—i.e., the half
that made Arbour’s request actionable—was the follow-up statement that
Arbour didn’t make: Our staff wasn’t qualified to treat Yarushka. The Court
said Relators’ claim was viable because it pleaded both the truth (the codes)
and the lie (the failure to disclose noncompliance): “By using payment and
other codes that conveyed this information without disclosing Arbour’s many
violations of basic staff and licensing requirements for mental health facilities,
Universal Health’s claims constituted misrepresentations.” Id.
The court recounts the entire holding to make this point: the Court ended
its analysis by finding that Relators could prove the true half of Arbour’s
payment request—i.e., the counseling services Arbour employees provided—by
presenting evidence that Arbour used “payment and other codes that conveyed
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this information.” Id. Only then, right after saying that “payment and other
codes” can prove the goods and services provided, did the Court articulate the
two-condition test for future cases that the BJCTA hangs its hat on here:
Accordingly, we hold that the implied certification theory can be a

basis for liability, at least where two conditions are satisfied: first,
the claim does not merely request payment, but also makes specific
representations about the goods or services provided; and second,
the defendant’s failure to disclose noncompliance with material
statutory, regulatory, or contractual requirements makes those
representations misleading half-truths.
Id. at 190 (highlight added).
Now having the full context of this statement, we know that Escobar does
not require Relators to show the defendant typed out a detailed description of
the goods or services provided to prove their case. Codes that correspond to
general categories “such as ‘Individual Therapy’ and ‘Family Therapy.’” id. at
184, can be enough, as long as the codes provide enough information about the
services provided to make the unspoken noncompliance with statutes or
regulations “a misleading half-truth.” Id. at 190.
That means all Relators had to show here was that Walker’s use of the
grant number and amount requested conveyed enough information to notify
the FTA about the type of services Strada provided, thus making the BJCTA’s
failure to admit noncompliance with the Brooks Act a misleading half-truth.
B. The use of codes in this case
A reasonable juror could have found that Walker told the FTA about the
services Strada provided each time she typed the grant numbers and amount
requested into the ECHO system. It’s not a close question. The FTA not only
knew what services each grant was compensating, the FTA helped Strada and
the BJCTA write the task orders—and even dictated some of the tasks. The
court uses Grant AL-03-0058 and Task Order 12 as examples.1
1 The BJCTA requested funds from Grants AL-03-0058, AL-03-0077 and AL-95-X007 to
reimburse Strada’s work on Task Orders 7, 7a, 7b, 12 and 24.
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1. The facts: The BRT project was a collaborative effort between the
City, the BJCTA, the FTA, and others. Once a quarter (at least), Murdock and
representatives from the City, Strada, and others would drive to Atlanta to
meet with the FTA “and go over what the time line was for whatever task order
we were about to undertake.” (Trans. 322). According to Murdock, “Strada
would lead the presentations to the Federal Transit Administration, and they
would have a professional notetaker there taking notes as to what were the
next steps in this project and how the money would be spent.” (Id.).
Among other things, the FTA told the BRT team that someone had to
produce an environmental “NEPA” study and “Historic Property and Cultural
Resources Inventory.” (Trans. 323-24). The BJCTA agreed to manage and fund
those tasks. (See id.; Tr. Ex. 19).
In February 2016, Murdock asked the FTA to repurpose two grants for
use on the BRT Project. Relevant here, Murdock asked the FTA to allow the
BJCTA to use Grant AL-03-0058 to fund the NEPA process under Task Order
12. Here’s a portion of that letter to the FTA:
(Tr. Ex. 13). As you can see, Murdock told the FTA that Grant AL-03-0058
would be used “to cover expenses associated with the technical assessments
and analysis of the environmental document”—i.e., the “NEPA process” in
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“Task 12.” (Id.).
The FTA promptly responded that “there are no impediments with the
use of the 5309 funds for the preliminary engineering and NEPA work. The
proposed activities noted in your letter for use of the remaining funding in AL-
03-0058-02 are eligible.”2 (Tr. Ex. 14).
Strada and the BJCTA worked with the FTA on the NEPA process and
Historic Property and Cultural Resources Inventory (i.e., Task Order 12) for
the next few months. Here’s how Murdock described the process:
A: But I can add that the FTA, at every step, was aware of the
task orders that we were executing with Strada because we
had to go over them quarterly in Atlanta during the
meetings with the FTA.
Q: Why is that Ms. Murdock?
A: They wanted to make sure that we were using the funds

appropriately and that they were – we were on a timeline
and a deadline that they set for NEPA, for the historic. For
all of the planning that was required by the FTA, so they
would require us to come over, tell us where we are, review
what Strada would produce, and then we would move on to
the next step. And at no time did they say, okay, now, go
back and bid out the next one and come back again. They
would tell Strada: This is what we expect to see the next
time.
(Trans. 330-31).
The BJCTA summarized this back-and-forth with the FTA in its monthly
activity summaries. (Tr. Ex. 41). Here’s an example from December 2016 that
reflects the relationship between Strada and the FTA:
2The term “5309 Funds” refers to 49 U.S.C. § 5309, which gives the FTA authority to issue
grants for fixed guideway projects. Grant AL-03-0058 was a “New Starts” 5309 project.
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(Id., p.50).
Strada would submit invoices to Murdock for its work. (See, e.g., id., p.
49 (Strada’s December 2016 invoice for Task Order 12)). Once the BJCTA paid
Strada, Walker would calculate 80% of the amount paid (i.e., the federal share
of the project) and identify the appropriate grant. (Trans. 580). Walker would
then log into the ECHO system and type the grant number and amount
requested to draw down the appropriated funds. (Trans. 582-84). Walker then
received a receipt like this:
(Tr. Ex. 41, p. 53, circles added).

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2. Applying Escobar: Again, the court’s task is to determine whether

Relators provided enough evidence to allow a reasonable juror to find that the
BJCTA made “specific representations about the goods and services [Strada]
provided.” Escobar, 579 U.S. at 190. In performing that task, the BJCTA asks
the court to look solely at the grant numbers and request amounts circled above
and pretend they meant nothing to the FTA. But Escobar doesn’t require
blinders, and the court won’t wear them when judging a Rule 50(b) motion.
Looking at Relators’ evidence as a whole, the jury could have found that
the FTA knew what services were being reimbursed when Walker submitted a
payment request through the ECHO system. Relator’s best evidence on this
point is Walker’s testimony that the FTA knew which services were being
reimbursed when she typed the grant number into ECHO:
Q: When you’re in ECHO, and specifically as it relates to

having processed reimbursements for payments made to
Strada by the BJCTA, does the ECHO system require you
to check any box that says: These funds were expended
using the proper procurement method?
A: No.
Q: Does it require you to check a box saying: I have complied

with all FTA rules, regulations, and laws?
A: No.
Q: So nothing like that exists in ECHO?
A: No. So the ECHO is for you to make – simply make a

payment request. And that payment request should be
made based on the wording of the grant application and
the approved activities within that application.
Q: When you say approved activity within a grant application,

is that where you’re explaining to the FTA what you – the
nature of the work you intend to use the money for?
A: Yes. Each grant application has a scope and an activity line

item. So the scope for these particular awards in which
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these activities were funded, one scope could be NEPA.

Once scope may be ITP. So everything that is submitted
in ECHO for those particular scopes or activities
should match what’s in the application, or must match.
(Trans. 610) (highlight added). By Walker’s own admission, when she typed in
the grant number, she was “explaining to the FTA” that the BJCTA was
seeking funds to pay for the “particular scopes or activities” in the grant
application. She couldn’t seek reimbursement for any other goods or services.
That testimony alone is enough to allow the jury to find that the BJCTA
made representations about the goods and services provided. But as the court
has detailed, the jury heard much more. Relators provided documents that
showed the FTA approved the use of the grants for the specific purposes being
compensated. Murdock testified that “the FTA, at every step, was aware of the
task orders that we were executing with Strada.” (Trans. 330-31). And
Murdock testified that the FTA ordered some tasks, knowing how they would
be funded. Combined, this evidence would allow a reasonable juror to find that
the FTA knew what goods and services Strada provided because the FTA was
intimately involved in—and sometimes directed—the process.
In Escobar, the Supreme Court found that a simple payment code for
“Individual Therapy,” 579 U.S. at 184, was enough evidence of the counseling
services Arbour provided to make a viable claim. The combination of Walker’s
testimony, Murdock’s testimony, the letters between the BJCTA and the FTA,
and the BJCTA’s monthly activity summaries easily clears that low bar.
As a result, the court finds that Relators provided enough evidence to

allow a reasonable juror to find that the BJCTA made representations about
the goods and services provided each time Walker submitted a reimbursement
request into the ECHO system. See id. So the court denies the BJCTA’s motion
for judgment on the falsity element.
17
2. Scienter (i.e. “knowingly presents”)
The BCJTA is liable for presenting false claims only if it “knowingly

presents, or causes to be presented,” the false or fraudulent claims. 31 U.S.C.
§ 3729(a)(1)(A) (emphasis added). Congress defined “knowingly” to
(A) Mean that a person, with respect to information—
(i) has actual knowledge of the information;
(ii) acts in deliberate indifference of the truth or falsity of

the information; or,
(iii) acts in reckless disregard of the truth or falsity of the

information.
31 U.S.C. § 3729(b)(1).
The BJCTA argues that Relators failed to provide evidence that the
BJCTA knowingly failed to disclose its violations of the Brooks Act because (a)
the BJCTA didn’t violate the Brooks Act, and (b) if it did, the BJCTA didn’t
know it was violating the Brooks Act.
Relators argue that they proved that the BJCTA violated the Brooks Act
and that either (a) the BJCTA knew it had violated the Brooks Act or, if it
didn’t know, (b) it acted in reckless disregard of its violation.
The court divides its discussion into two parts. First, the court decides
whether Relators provided enough evidence to support a finding that the
BJCTA violated the Brooks Act. Second, the court decides whether Relators
provided enough evidence to support a finding that the BJCTA either knew it
violated the Brooks Act or recklessly disregarded the violation.
A. Brooks Act violation
The court interpreted the Brooks Act in its summary judgment opinion
and adopts that analysis here. (See Doc. 206, pp. 20-27). As it did then, the
court starts with the full text of Title 40, Sections 1103 and 1104:
18
40 U.S.C. § 1103. Selection procedure
(a) In General.--These procedures apply to the procurement of

architectural and engineering services by an agency head.
(b) Annual Statements.--The agency head shall encourage firms to

submit annually a statement of qualifications and performance
data.
(c) Evaluation.--For each proposed project, the agency head shall

evaluate current statements of qualifications and performance
data on file with the agency, together with statements submitted
by other firms regarding the proposed project. The agency head
shall conduct discussions with at least 3 firms to consider
anticipated concepts and compare alternative methods for
furnishing services.
(d) Selection.--From the firms with which discussions have been

conducted, the agency head shall select, in order of preference, at
least 3 firms that the agency head considers most highly qualified
to provide the services required. Selection shall be based on
criteria established and published by the agency head.
40 U.S.C. § 1104. Negotiation of Contract
(a) In general.--The agency head shall negotiate a contract for

architectural and engineering services at compensation which the
agency head determines is fair and reasonable to the Federal
Government. In determining fair and reasonable compensation,
the agency head shall consider the scope, complexity, professional
nature, and estimated value of the services to be rendered.
(b) Order of negotiation.--The agency head shall attempt to

negotiate a contract, as provided in subsection (a), with the most
highly qualified firm selected under section 1103 of this title. If the
agency head is unable to negotiate a satisfactory contract with the
firm, the agency head shall formally terminate negotiations and
then undertake negotiations with the next most qualified of the
19
selected firms, continuing the process until an agreement is

reached. If the agency head is unable to negotiate a satisfactory
contract with any of the selected firms, the agency head shall select
additional firms in order of their competence and qualification and
continue negotiations in accordance with this section until an
agreement is reached.
With these provisions, Congress created a three-step process that the BJCTA
had to use when contracting for A&E services:
o Step 1: The BCJTA had to discuss, “with at least 3 firms,”

“anticipated concepts and compare alternative methods for
furnishing services;”
o Step 2: The BJCTA had to select, “in order of preference, at least

3 firms that the [BJCTA] considers most highly qualified to
provide the services required[;]” and,
o Step 3: The BJCTA had to negotiate a contract “with the most

highly qualified firm” from Step 2. If that negotiation failed, the
BJCTA had to then negotiate “with the next most qualified of
the selected firms.” The BJCTA had to negotiate in the Step 2
ranking order until a contract was signed.
40 U.S.C. § 1103(c) (Step 1); § 1103(d) (Step 2); § 1104(b) (Step 3). Section
1103(b) required this process “[f]or each proposed project.”
For Step One, Relators provided evidence the BJCTA released RFQ 15-
17 to solicit A&E firms (Tr. Ex. 95), and five firms submitted responses.
In Step Two, the BJCTA had to “select, in order of preference, at least 3

firms that the agency head considers most highly qualified” from this group of
five. 40 U.S.C. § 1103(d). Relators provided evidence that the BJCTA convened
an independent group of evaluators who ranked the firms like this:
20
Rank Firm Total Score
1 Whitman Requardt & Associates (WRA) 386
2 Wendel 349
3 Strada Professional Services 334
4 Sarcor LLC 286
5 Dynamic Civil Solutions 276
(Tr. Ex. 24, p. 3). Relators provided evidence that the BJCTA Board passed a
resolution that allowed Murdock to sign a contract with the three top ranked
firms: WRA, Wendel, and Strada. (Tr. Exs. 93, 113, 115, 117). In its resolution,
the Board said that it was authorizing those three firms “based on the FTA
Circular 4220.1F guidance and the evaluation committee’s ranking of the top
three firms.” (Tr. Ex. 93, p. 1).
So far, so good.
Step 3 then required the BJCTA to “attempt to negotiate a contract, as

provided in subsection (a), with the most highly qualified firm selected under
section 1103 of this title.” 40 U.S.C. § 1104(b). That’s where the problem lies.
Relators argue—and their evidence supports—that the only selection of

at least three firms “under section 1103 of this title” was the independent
committee’s ranking of the five A&E firms. Because WRA emerged as “the most
highly qualified firm selected under section 1103 of this title,” 40 U.S.C. §
1104(b), the BCJTA had to negotiate first with WRA. Id.
But Relators presented evidence that the BJCTA negotiated no projects

with WRA from the time the committee ranked the A&E firms until Relators
filed their complaint more than two years later. Instead, the BJCTA gave all
33 task orders to Strada without negotiating with either WRA or Wendel.
The court finds that this evidence was sufficient to allow a reasonable
juror to find that the BJCTA violated the Brooks Act. Relators presented
enough evidence to allow a reasonable juror to find that the BJCTA selected
21
WRA as the “most highly qualified firm selected under section 1103,” and that
the BJCTA did not negotiate Task Orders 7, 7a, 7b, 12, or 24 with WRA before
awarding them to Strada. Those two facts combined result in a Brooks Act
violation.
The BJCTA lodges three objections to Relators’ theory of a Brooks Act

violation. (Doc. 239, pp. 28-33). The court addresses each.
1. Lack of discussions: Section 1103(c) requires the agency to “conduct

discussions with at least 3 firms,” and section 1103(d) requires the agency to
choose at least three firms “[f]rom the firms with which discussions have been
conducted.” The BJCTA argues that Relators failed to prove that the
independent committee’s ranking of the five firms determined “the most highly
qualified firm selected under section 1103” because “Relators did not present
any evidence that the team of independent evaluators had discussions with
any firms at all.” (Doc. 239, p. 26).
Assuming the BJCTA is correct, the evaluators’ failure to talk to the

responsive firms hurts the BJCTA more than Relators. The BJCTA is right
that, “for each proposed project,” the Brooks Act requires “discussions with at
least three firms” in Step One. 40 U.S.C. § 1103(c). If the committee failed to
discuss RFQ 15-17 with three firms, then the BJCTA violated the Brooks Act
at every step—not just Step 3. Again, the BJCTA Board relied on the
“evaluation committee’s ranking of the top-three firms” to authorize Murdock
to sign contracts with WRA, Wendel, and Strada. (Tr. Ex. 93). Murdock
admitted that she didn’t negotiate the task orders with anyone but Strada. So
if the BJCTA is right, its violation runs deeper than Relators argued.
2. Lack of contract: The BJCTA next argues that, once it resolved to

contract with WRA, Wendel, and Strada, it had the discretion “to select the
entity they perceived to be best suited for the task at hand.” (Doc. 239, p. 29-
30). And Murdock (on the BJCTA’s behalf) selected Strada for Task Orders 7,
7a, 7b, 12, and 24 because (a) Strada was the program manager for the BRT
project and thus had the best working knowledge of the project, and (b) WRA
and Wendel had yet to sign their contracts, so Strada was the only choice.
22
This argument fails because it ignores a statutory mandate. Section

1104(b) required Murdock to start negotiations “with the most highly qualified
firm selected under section 1103 of this title.” As mentioned, WRA was “the
most highly qualified firm selected under section 1103”—i.e., the section that
requires discussions with, and the ranking of, at least three firms. Murdock
did not have discussions with at least three firms “for each project,” as
Congress required under § 1103(c). So Murdock didn’t have the statutory
authority to choose Strada over WRA and Wendel in § 1104. She either had to
follow the rankings of the independent committee that the BJCTA Board relied
on (see Tr. Ex. 93, p. 1), or she had to restart the selection process by talking to
at least three firms “for each proposed project,” as Congress required. See 40
U.S.C. § 1103(c).
3. Discretion: Finally, the BJCTA cites secondary sources and decisions

of the Comptroller General to argue that “entities such as the BJCTA have
‘broad discretion in determining the relative importance of the criteria’
established and published.” (Doc. 239, p. 30 quoting 2 Government Contract
Awards: Negotiation and Sealed Bidding §22:5).
But these authorities are discussing the discretion agencies have to

choose and weigh the selection criteria used in Steps 1 and 2, as set out in the
Federal Acquisition Regulations.3 See 48 C.F.R. 36.602. Relators did not argue
that the BJCTA wrongly chose or weighed the selection criteria in Steps 1 and
2; they argued that the BJCTA ignored the results of the ranking process by
failing to negotiate any task orders with the “most highly qualified firm” to
emerge from that process (WRA) in Step 3.
While the parties don’t discuss it, the Federal Acquisition Regulations
(“FAR”) would have allowed the BJCTA’s “selection authority” to overrule the
independent committee’s rankings before signing contracts. Here’s what FAR
required the independent committee to do:
3For example, the BJCTA quote about “broad discretion” comes from Section 22:5 of
Government Contract Awards, titled “selection criteria.” That section discusses the selection
criteria listed in Federal Acquisition Regulation 36.602-1. Government Contract Awards
discusses “negotiation and award” process, which Relators based their case on (i.e., Step 3),
five sections later. See 2 Government Contract Awards: Negotiation and Sealed Bidding
§22:10.
23
(a) Review the current data files on eligible firms and responses to
a public notice concerning the particular project (see 36.603).
(b) Evaluate the firms in accordance with the criteria in 36.602–1.
(c) Hold discussions with at least three of the most highly qualified
firms regarding concepts and the relative utility of alternative
methods of furnishing the required services.
(d) Prepare a selection report for the agency head or other

designated selection authority recommending, in order of
preference, at least three firms that are considered to be the most
highly qualified to perform the required services. The report shall
include a description of the discussions and evaluation conducted
by the board to allow the selection authority to review the
considerations upon which the recommendations are based.
48 C.F.R. 36.602-3. The Federal Regs then allowed the BJCTA to rearrange
the independent committee’s ranking order, if it followed this process:
(a) The final selection decision shall be made by the agency head
or a designated selection authority.
(b) The selection authority shall review the recommendations of

the evaluation board and shall, with the advice of appropriate
technical and staff representatives, make the final selection. This
final selection shall be a listing, in order of preference, of the firms
considered most highly qualified to perform the work. If the firm
listed as the most preferred is not the firm recommended as the
most highly qualified by the evaluation board, the selection
authority shall provide for the contract file a written explanation
of the reason for the preference. All firms on the final selection list
are considered selected firms with which the contracting officer
may negotiate in accordance with 36.606.
(c) The selection authority shall not add firms to the selection
report. If the firms recommended in the report are not deemed to
be qualified or the report is considered inadequate for any reason,
24
the selection authority shall record the reasons and return the
report through channels to the evaluation board for appropriate
revision.
(d) The board shall be promptly informed of the final selection.
48 C.F.R. 36.602-4 (highlight added). Relators’ evidence shows that BJCTA

staff talked to the “top three firms” after receiving the committee’s rankings:
(Tr. Ex. 93, p. 3). But they did not recommend that the Board re-rank the firms
and provided no written explanation of the reason for preferring Strada as
required by the FAR. As a result, when the Board passed the resolution that
authorized Murdock to sign contracts with the top three firms, it used the
independent committee’s ranking—because that’s the only ranking it had:
(Tr. Ex. 93, p. 1) (circle added).

25
As a result, Relators’ evidence supports a finding that the BJCTA ranked

WRA as the “most highly qualified” firm under Section 1103 of the Brooks Act
and Section 36.602 of the FAR, thus stripping Murdock of the ability to start
negotiations with Strada. See 40 U.S.C. § 1104; 48 C.F.R. 36.606(a) (“Unless
otherwise specified by the selection authority, the final selection authorizes the
contracting officer to begin negotiations. Negotiations shall be conducted in
accordance with part 15 of this chapter, beginning with the most preferred firm
in the final selection”).
To sum up, Relators provided sufficient evidence that the BJCTA

violated the Brooks Act. The question now is whether the BJCTA knew it was
violating the Brooks Act or acted in reckless disregard of its violation.
B. Knowing violation
Again, Congress defined “knowingly” to
(A) Mean that a person, with respect to information—
(i) has actual knowledge of the information;
(ii) acts in deliberate indifference of the truth or falsity of

the information; or,
(iii) acts in reckless disregard of the truth or falsity of the

information.
31 U.S.C. § 3729(b)(1). Relators argue that they provided enough evidence to

prove either “actual knowledge” or “reckless disregard.” The court agrees.
1. Actual Knowledge: The Master Agreement between the FTA and the
BJCTA required the BJCTA to follow the Brooks Act and FTA Circular 4220.1.
(Tr. Ex. 11, § 16(a)(3)). And the Board’s Resolution that gave Murdock the
authority to sign contracts with Strada, Wendel, and WRA said that the
Board’s decision was “based on the FTA Circular 4220.1F and the evaluation
committee’s ranking to top-three firms[.]” (Tr. Ex. 93, p.1). So the BJCTA knew
it had to comply with the Brooks Act.
26
The question is whether the BJCTA knew it was violating the Brooks
Act when it awarded Strada Task Orders 7, 7a, 7b, 12, and 24 without
negotiating with any other firms. The timeline of events suggests it did.
The Board voted to allow Murdock to sign contracts with Strada, Wendel,
and WRA on October 28, 2015. (Tr. Ex. 93). In its resolution, the Board said
that it based its decision on FTA Circular 4220.1F, which says that
negotiations start “only with the most qualified” firm:
FTA Circular 4220.1F, Ch. VI, ¶ 3(f)(3). Yet Murdock signed the contract with
#3-ranked Strada on October 1st—27 days before the Board gave her authority
to contract with anyone, six months before she signed a contract with #2-
ranked Wendel, and eight months before she signed a contract with #1-ranked
WRA. (Tr. Exs. 113, 115, 117).
At trial, Murdock struggled to explain how she signed the Strada

contract as interim executive director on October 1, 2015, when she did not
take that position until October 9th:
Q: Was that a regular practice for you to backdate documents?
A: Sir, I just – I mean, the former executive director just left,

and I was just put into that seat. So I was directed by the
board and by attorneys as to what to do. It would not have
been a practice of mine.
Q: So the board would have directed you to sign it?
A: I am not saying – I don’t recall who directed me. I’m just

saying that I just wouldn’t have signed it unless I was
authorized to sign it.
27
Q: Is it your testimony that the board told you to sign that

agreement as of October 1, 2015, ma’am?
A: I don’t recall who directed me. I’m just saying that I didn’t
get the official – there was a special called meeting in
October that put me in the position, and I reported to the
board and board chairman.
Q: Well, a moment ago, ma’am, you speculated that you could

have backdated it, so which one is it? Did you backdate it or
were you authorized to do it?
A: I was trying to come up with reasons as to why it could

have happened. I really don’t recall sir.
(Trans. 141-42). A reasonable juror hearing this testimony could have found
that the BJCTA Board or its attorneys told Murdock to sign a contract with
Strada before giving her the authority to do so and before she talked to WRA
or Wendel about its ability to do BRT-related work. Based on that finding, the
same juror could have agreed with Relators’ theory that the BJCTA decided
months earlier to assign all tasks to Strada as the City’s pick for BRT Project
Manager, and it posted RFQ 15-17 and assembled an independent committee
to rank the firms’ responses as a ruse to fake compliance with the Brooks Act.
The court finds that Relators presented enough evidence to support its
theory that the BJCTA knew it was violating the Brooks Act, and thus
presented enough evidence to support the jury’s finding of scienter.
2. Reckless disregard: Assuming instead that the BJCTA did not know
it was violating the Brooks Act, the court finds that Relators presented enough
evidence to support a finding that the BJCTA recklessly disregarded its
noncompliance with the Brooks Act when the BJCTA certified to the FTA that
it had complied with the requirements of the Master Agreement.
The BJCTA’s corporate representative, former executive director Frank

Martin, testified that the BJCTA knew it had to follow the Brooks Act and
handled the “entire procurement” process with “gross incompetence.” (Trans.
90-92). “Under the FCA, reckless disregard is tantamount to gross negligence.”
28
Yates v. Pinellas Hematology & Oncology, 21 F.4th 1288, 1303 (11th Cir. 2021).
If gross negligence is enough, then a corporate admission that the BJCTA
handled its known legal duty with gross incompetence is enough to support a
finding of reckless disregard.
—
In sum, Relators provided enough evidence to allow a reasonable juror
to find that the BJCTA had actual knowledge of its noncompliance with the
Brooks Act, or alternatively, that the BJCTA was reckless in not knowing. So
the court denies the BJCTA’s motion for judgment on the scienter element.
3. Materiality
Finally, the BJCTA challenges Relators’ proof of materiality, which

focuses on how the false claim affected the Government. The FCA defines
material as “having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.” 31 U.S.C. §
3729(b)(4). But mere influence is not enough. In Escobar, the Supreme Court
said that the “materiality standard is demanding”; it is not met simply because
“the Government would be entitled to refuse payment were it aware of [a
statutory, regulatory, or contractual] violation.” Escobar, 579 U.S. at 194–95.
Nor is materiality proved if the noncompliance is “minor or insubstantial.” See
id. at 194.
The question is whether the Government “in fact paid for claims that it
would not have paid had [the requestor] been truthful.” Yates, 21 F.4th at 1305.
One way to gauge whether the Government would have paid if it knew of the
violation beforehand is to gauge its response after discovering a violation. As
the Supreme Court put it, “if the Government regularly pays a particular type
of claim in full despite actual knowledge that certain requirements were
violated, and has signaled no change in position, that is strong evidence that
the requirements are not material.” Escobar, 579 U.S. at 195. On the flip side,
evidence that the Government regularly demands repayment when it discovers
a violation would be strong evidence of materiality.
Below, the court recounts Relators’ evidence that the FTA demands
repayment of grant funds when it discovers similar statutory or regulatory
violations.
29
1. BJCTA testimony: Three BJCTA employees testified that they knew

the FTA would require repayment of grant funds if the FTA discovered the
BJCTA hadn’t complied with regulations like the Brooks Act. Frank Martin
was the BJCTA’s executive director from 2018 to 2021 and served as the
BJCTA’s corporate representative in the case. Martin testified that if the
BJCTA violated a federal law or regulation listed in the Master Agreement,
“the government would come in and take their money back.” (Trans. 92). He
also confirmed his corporate deposition testimony that “if the Authority had
violated the rules and [was] sanctioned by the FTA, then, yes, it is common
practice that they would have to pay that money back.” (Trans. 96).
As mentioned, Stephanie Walker was the grants administrator who

uploaded the reimbursement requests. Walker testified that she knew “if the
BJCTA actually violated these certifications and assurances [of compliance],
that the FTA would ask for their money back.” (Trans. 587).
Karen Jacobs served as the BJCTA’s financial director from 2015 to 2018.
Jacobs agreed that “if you don’t follow proper procurement rules and didn’t do
what you were supposed to do when it came to procuring federal grants, that
the funds would have to be paid back to the FTA[.]” (Trans. 541).
That three BJCTA employees believed the FTA would require the
BJCTA to pay the grant funds back if the BJCTA violated the Brooks Act is
strong evidence of materiality. Martin’s statement that it was “common
practice” for the FTA to take its money back alone was enough to let the jury
decide. But there’s more.
2. The City’s Repayment: Soon after Relators filed their complaint, the
FTA investigated the City’s use of grant funds to pay Strada. When the City
failed to produce documents that showed compliance with FTA Circular
4220.1F, the FTA demanded the City return “[t]he total amount of Federal
dollars expended on the non-compliant Federal contract” ($261,854), plus
interest. (Tr. Ex. 61, p. 6). This is strong evidence that the FTA would not have
paid out grant funds to either the City or the BJCTA if the FTA had known
that neither entity complied with the Brooks Act and FTA regulations when
selecting Strada. See FTA Circular 4220.1F, Ch. VI, ¶ 3(f)(3) (instructions for
compliance with the Brooks Act).
30
The BJCTA says that it disproved materiality by presenting evidence of

these four things:
1. The FTA divorced the reporting of regulatory compliance (i.e.,

the TrAMS system) from payment requests (i.e., the ECHO
system);
2. The FTA investigated the BJCTA’s contract with Strada in late
2018 and did not demand its money back;
3. The FTA did not demand its money back after the 2019
Triennial Review of the BJCTA’s procurement files; and,
4. The FTA still awards grants to the BJCTA, despite this lawsuit.
(Doc. 239, p. 17-20). The court agrees that Facts #2, #3, and #4 weigh against
materiality. But the jury heard evidence about all four facts and found that
Relators’ evidence had more weight.4 It is not the court’s role to second guess
the jury’s weighing of the evidence. The court’s role is to determine whether
Relators presented enough evidence to support the jury’s verdict. As explained,
they did. So the court denies the BCJTA’s request for judgment on the
materiality element.
To sum up, Relators presented enough evidence to support the jury’s

finding on each element in Count III. So the court will enter an order denying
the BJCTA’s renewed motion for judgment as a matter of law. (Doc. 239).
4The parties hotly debated the relevance and impact of the FTA’s actions after Relators filed
their complaint under seal (Facts #2, #3, and #4). After consulting the parties (Trans. 921-
22), the court instructed the jury about the Government’s right to intervene in Relators’ case
and its choice not to. (Doc. 230, p. 5). So the jury was allowed to consider both sides’
arguments about how the FTA’s actions weighed for and against materiality.
31
B. Relators’ Rule 50(b) Motion
The court asked the jury two questions about damages, and the jury gave
these answers:
Relators ask the court to set aside the second number because, they say, the
Federal Government received no benefit from Task Orders 7, 7a, 7b, 12 and 24
as a matter of law. (Doc. 240). The United States agrees. (Doc. 261, p. 5).
The court tackles the issue in four steps. First, the court explains how
Relators preserved the issue. Second, the court explains the unsettled nature
of the law on FCA damages. And with its final two steps, the court applies the
Eleventh Circuit’s published and unpublished tests for damages.
1. Preservation of the issue
The BJCTA argues that Relators waived their right to argue that the
Government did not benefit from Strada’s work in a Rule 50(b) motion because
Relators did not first make this argument in a Rule 50(a) motion.
But Relators made this argument at trial. Repeatedly. As explained more

in Part 2, the court discussed how to craft the verdict form with the parties
during the first week of trial because the law on damages is unsettled. (Trans.
923-35). At the end of that discussion, Relators asked if they could submit “a
memorandum of law” on the issue, and the court said both parties could submit
memos on Friday and replies on Saturday. (Trans. 925-27). The court ended by
saying that it planned to ask the jury the two questions you see above (i.e.,
amount of funding and benefit), “and then the parties will have the right in
their post-verdict motions to say it was either inappropriate to allow them to
do this or the evidence doesn’t support it.” (Trans. 927).
32
Relators timely emailed their memo to chambers, which concluded by

asking the court to “determin[e] that no benefit was conferred” and thus
“calculate damages as the total amount paid.” (Doc. 244-2, p. 7). When the trial
reconvened on Monday, the court noted that it read the submissions, and
summarized Relators’ argument: “Relators think that I should decide if there
is a benefit as a matter of law rather than allowing the jury to have the
opportunity to quantify a benefit.” (Trans. 1242). Both parties agreed that the
court correctly summarized their position on damages, and the court wrapped
up the discussion by saying, “Both sides are preserved. And certainly if
damages are awarded, then we can take this up again posttrial.” (Id.).
In short, before the court submitted the case to the jury, Relators asked
the court to declare, as a matter of law, that the Government did not benefit
from Strada’s work. Relators make the same argument based on the same
caselaw here. As a result, Relators preserved the issue. Fed. R. Civ. P. 50(a)(2);
see also Etienne v. Inter-County Sec. Corp., 173 F.3d 1372, 1374 (11th Cir. 1999)
(counsel’s statement during trial asking the court to enter judgment was
enough to preserve the issue for appeal, even though he “did not expressly
make a motion for judgment as a matter of law”).
2. The tests for damages
The FCA allows “the United States Government” to recover a civil

penalty plus “3 times the amount of damages which the Government sustains
because of the act of [the Defendant].” 31 U.S.C. § 3729(a)(1). But Congress did
not define “damages.” Nor has the Eleventh Circuit, which recently said, “there
is no set formula for calculating the United States’ damages in an FCA action.”
Yates, 21 F.4th at 1305.
The circuit court has applied two equations. In its published opinions,
the court has measured damages by finding “the difference between what the
government paid and what it would have paid had the defendant’s claim been
truthful and accurate.” Id.; see also United States v. Killough, 848 F.2d 1523,
1532 (11th Cir. 1988) (“Case law indicates the measure of damages is generally
determined to be the difference between what the government actually paid on
the fraudulent claim and what it would have paid had there been fair, open
and competitive bidding”).
33
In an unpublished opinion, the circuit court added a third factor to the

equation—i.e., Government benefit:
The district court did not abuse its discretion by calculating

damages based on the entire amount the government paid to the
Anghaies. The evidence shows that the government would not
have paid the Anghaies at all but for their fraud. Therefore, the
difference between what the government paid and what it would
have paid in open, fair, and competitive bidding was the full
amount of the contract payments. Although this loss amount must
be offset by any benefit conferred to government, the district court
did not err in finding that the government received no benefit.
United States v. Anghaie, 633 F. App’x 514, 518 (11th Cir. 2015) (highlight
added); (citing United States v. Sci. Applications Int’l Corp., 626 F.3d 1257
(D.C. Cir. 2010); United States ex rel. Longhi v. United States, 575 F.3d 458,
473 (5th Cir. 2009)).
The Eleventh Circuit has not published an opinion that required

subtraction of the Government’s benefit from its base equation, although it
cited published opinions from the Fifth and D.C. Circuits that do. This led to
the aforementioned discussion during trial, with the court ultimately asking
the parties to argue the case assuming that benefit mattered. The BJCTA
argued that Strada’s work benefitted the Government, so the value of that
work should be subtracted from the amount paid. Relators (now joined by the
United States) argued that the Government does not own the fruits of Strada’s
labor, so there can be no tangible benefit. They say that the only benefit the
Government could have received was the intangible benefit of ensuring that
only the “most highly qualified” firm performed the work thanks to the Brooks
Act. And the BJCTA’s false claims rendered that benefit null.
Because the law is unsettled—and to avoid trying this case twice—the

court asked the jury to separately decide “what benefit (if any) the U.S.
Government receive[d] from the funding that it gave BJCTA for work done
pursuant to Task Orders 7, 7a, 7b, 12 and 24.” (See Trans. 923-27 (court’s
discussion with counsel)). The jury decided the benefit was $1,078,467.74. And
34
the court finds that the BJCTA presented enough evidence to support the jury’s
finding of fact that Strada’s work was worth $1,078,467.74.
Now the court decides whether, as a matter of law, that amount can be
subtracted from the Government’s damages using either the base equation
announced in the published Killough and Yates opinions or the modified
equation announced in the unpublished Anghaie opinion.
3. Base equation: “Amount Paid - Amount Would Have Paid”
Applying the published, base equation is easy. For the first number, the
parties agree with the jury’s finding that the Government paid $1,438,467.74
for Task Orders 7, 7a, 7b, 12 and 24. And the second number must be $0
because, when the jury found that Relators proved materiality, it necessarily
found that the Government would have paid nothing had it known that the
BJCTA violated the Brooks Act. See Yates, 21 F.4th at 1305 (materiality shown
if the Government “in fact paid for claims that it would not have paid had [the
requestor] been truthful.”). As a result, applying the test from the Circuit’s
published opinions to the jury’s fact findings means that the Government’s
damages are the full amount of the funds paid ($1,438,467.74) minus zero.
4. Anghaie test: “Base equation – Benefit to the Government”
In its unpublished Anghaie opinion, the Eleventh Circuit articulated the

same equation applied above, and then added this proviso: “Although this loss
must be offset by any benefit conferred to government[.]” 633 Fed. App’x at
519. The Anghaie court looked to the Fifth and D.C. Circuits for guidance on
government benefits. See United States v. Sci. Applications Int’l Corp., 626
F.3d 1257 (D.C. Cir. 2010); United States ex rel. Longhi v. United States, 575
F.3d 458 (5th Cir. 2009). Those courts broke government benefits into two
categories: tangible and intangible. The court does the same below.
1. Tangible benefit: The FCA awards damages to “the United States

Government,” 31 U.S.C. § 3729(a)(1), so any offset must come from a benefit to
the United States Government. The court finds, as a matter of law, that the
United States Government could not have tangibly benefitted from the grant
funds it gave the BJCTA to reimburse Strada’s work.
35
Congress defined the differences between procurement contracts, grant

agreements, and cooperative agreements in the Federal Grant and Cooperative
Agreement Act of 1977. See Pub. L. 95-224. Congress defined the purpose of
each instrument, in part, by defining the benefit to the United States:
• Procurement Contracts: “the principal purpose of the

instrument is to acquire (by purchase, lease, or barter) property
or services for the direct benefit or use of the United States
Government,” 31 U.S.C. § 6303(1);
• Grant Agreement: “the principal purpose of the relationship is

to transfer a thing of value to the State or local government or
other recipient to carry out a public purpose of support or
stimulation authorized by a law of the United States instead of
acquiring (by purchase, lease, or barter) property or services for
the direct benefit or use of the United States Government,” 31
U.S.C. § 6304(1); and,
• Cooperative Agreement: “the principal purpose of the
relationship is to transfer a thing of value to the State, local
government, or other recipient to carry out a public purpose of
support or stimulation authorized by a law of the United States
instead of acquiring (by purchase, lease, or barter) property or
services for the direct benefit or use of the United States
Government,” 31 U.S.C. § 6305(1).
As you can see, Congress forbid the United States Government from receiving
a tangible benefit—i.e., “direct benefit or use”—from grant agreements. 31
U.S.C. § 6304(1). The United States Government can only receive direct,
tangible benefits from procurement contracts, 31 U.S.C. § 6303(1), which come
with their own set of rules and regulations absent here.
The only benefit the United States could have received from its grant
agreements with the BJCTA was an intangible benefit—i.e. “to carry out a
public purpose of support or stimulation authorized by a law of the United
States.” 31 U.S.C. § 6304(1). Which, of course, makes sense because the
Federal Government does not own Birmingham’s Bus Rapid Transit system.
36
2. Intangible benefit: The parties disagree which “public purpose of

support or stimulation” the court should look at when determining whether the
United States Government received an intangible benefit. 31 U.S.C. § 6304(1).
Relators and the United States point to the Brooks Act and its policy
statement: “The policy of the Federal Government is to publicly announce all
requirements for architectural and engineering services and to negotiate
contracts for architectural and engineering services on the basis of
demonstrated competence and qualification for the type of professional
services required and at fair and reasonable prices.” 40 U.S.C. § 1101. They
argue that the BJCTA’s payment of Strada deprived the Government of the
benefit it bargained for—i.e., a contract with the most highly qualified firm.
The BJCTA points instead to Congress’ policy statement in the chapter

that covers the fixed guideway capital investment grants that it received: “It
is in the interest of the United States, including the economic interest of the
United States, to foster the development and revitalization of public
transportation systems with the cooperation of both public transportation
companies and private companies engaged in public transportation.” 49 U.S.C.
§ 5301(a); see also 49 U.S.C. § 5309 (giving the FTA authority to make grants
like those given to the BJCTA). The BJCTA says that Strada’s work enhanced
the Birmingham transportation system, so the Federal Government received
the intangible benefit it bargained for.
The court agrees with Relators and the United States that the BJCTA’s
violation of the Brooks Act vitiates any intangible benefit the Government
would have received from Strada’s work, for three reasons.
First, giving the BJCTA credit for Strada’s work flouts the jury’s finding
of materiality. The circuit court recently made this point in Yates:
Pinellas’ argument that the United States fully received what it

bargained for—because the billed-for laboratory tests were
conducted—suffers from a conceptual conflict with our post-
Escobar understanding of materiality. In Escobar, the Supreme
Court rejected the notion that a false claim is material if the
United States merely could refuse payment if it were aware of the
37
violation—irrespective of whether it did or would. See Escobar, 136

S. Ct. at 2003. Instead, the Court held that “materiality look[s] to
the effect on the likely or actual behavior of the recipient of the
alleged misrepresentation.” See id. at 2002 (internal quotation
marks omitted).
Given what Escobar held, ruling that the United States did not
incur damages when it in fact paid for claims that it would not
have paid had they been truthful is difficult to square with a
finding that a false statement or representation is material.
Indeed, Pinellas’ argument ignores the implicit, necessary
conclusion of the jury’s materiality finding—that CLIA
certification is a considerable part of what the United States
expected and bargained for.
Yates, 21 F.4th at 1304-05. The same is true here. The BJCTA asks the court
to find that the Government benefitted from “approximately 75% of the total
amount of BJCTA’s reimbursement from the FTA,” (doc. 242, p. 21), even
though the jury found that the Government would have paid 0% of the total
amount if it knew about the noncompliance. Those facts cannot be squared.
Second, the Eleventh Circuit focused on the violated policy when judging
the Government’s intangible benefit in Anghaie. In that case, the defendant
was a professor who, along with his wife, fraudulently won four contracts for
research funded by grant programs. 633 Fed. Appx at 515. At sentencing for
their crimes, the court found that the Anghaies “provided valuable innovative
research” to the Government. Id. at 517. Seizing on that finding, the Anghaies
argued in their civil FCA case that they fulfilled Congress’ policy of awarding
these funds “to undertake and to obtain the benefits of research and
development in order to maintain and strengthen the competitive free
enterprise system and the national economy.” Id. at 518 (quoting 15 U.S.C. §
638(a)). Yet the Eleventh Circuit found that the Government received no
intangible benefit from the Anghaies’ work because the Anghaies deprived the
United States of another intangible benefit announced by Congress:
“award[ing] money to eligible deserving small businesses.” Id. at 518. So the
circuit court affirmed the district court’s award of full damages.
38
Third, as a matter of policy and common sense, grantees should not be

credited for satisfying one of Congress’ policy goals while violating another.
The court starts with an analogy. Imagine a parent allows her teenage son to
drive the family car under two conditions: (1) pick up my grocery order and
(2) no speeding! The son picks up the groceries; then picks up a $300 ticket for
driving 20 mph over the speed limit. The son knows that when he gets home,
he’s getting grounded for the ticket—not credit for the groceries.
The same is true here. In the same chapter that contains Congress’ policy
statement about developing and revitalizing public transportation systems, 49
U.S.C. § 5301(a), Congress requires grant recipients to comply with the Brooks
Act. See 49 U.S.C. § 5309(c)(1)(E) (requiring grantees to comply with 39 U.S.C.
§ 5325, which in turn requires compliance with the Brooks Act when awarding
A&E contracts, see 49 U.S.C. § 5325(b)(1)). The BJCTA’s former executive
director, financial director, and procurement manager all testified that they
knew the FTA would demand its money back if the BJCTA violated the Brooks
Act. In other words, they expected no credit from the FTA for Strada’s work if
the BJCTA broke the rules. And based on the jury’s verdict on materiality, they
would have received no credit.
To sum up, the court finds as a matter of law that the United States
Government did not benefit from Strada’s work on Task Orders 7, 7a, 7b, 12,
and 24 because the BJCTA violated the Brooks Act. That finding, combined
with the jury’s finding that the FTA would not have given the BJCTA the grant
monies if it knew about the BJCTA’s noncompliance, means that the damage
suffered by the United States Government is the full amount of money paid,
regardless of which Eleventh Circuit equation is applied. The court will thus
grant Relators’ renewed motion for judgment as a matter of law. (Doc. 240).
39
C. Relators’ Motion for Penalties
Finally, the court must impose a civil penalty against the BJCTA, on top
of treble damages. 31 U.S.C. § 3729(a)(1). Adjusted for inflation, the current
penalty range is $13,508 to $27,018 per violation. 28 U.S.C. § 2461 (requiring
adjustment for inflation); 28 C.F.R. § 85.5(a); table 1 column 7 (adjusted rate
for False Claims Act violations imposed after January 30, 2023).
1. Number of Violations
The jury found that the BJCTA violated § 3729(a)(1)(A), so to determine

the number of penalties, the court must determine how many times the BJCTA
“knowingly present[ed], or cause[d] to be presented, a false or fraudulent claim
for payment or approval.” 31 U.S.C. § 3729(a)(1)(A).
The parties disagree on the number of violations by focusing on a variety

of potential triggering events or items:
• The annual submission of certifications and assurances to the FTA;
• The annual renewal of the FTA Master Agreement;
• Strada’s submission of invoices to the BJCTA;
• The BJCTA drawing down funds from the ECHO system; and,
• The number of grants used to reimburse Strada’s work.
Only one of these—i.e., the BJCTA drawing down funds from ECHO—involves
the BJCTA presenting a claim for payment or approval to the United States.
So this is the only event that qualifies as a punishable violation. See Killough,
848 F.3d at 1533 (“each separate fraudulent submission by a defendant
demanding payment from the government is a ‘claim.’”).
At trial, Relators introduced ECHO receipts that show Stephanie Walker

requested money from the BJCTA’s grant funds 22 times. (Tr. Exs. 41-43). As
a result, Relators proved that the BJCTA violated the FCA 22 times.
40
2. Penalty per Violation
Congress did not list factors for courts to consider when determining the
penalty amount; Congress left it to the courts. This court accepted three rounds
of briefing on penalties, in which the parties named more than a dozen factors
for the court to consider. The court also held oral argument to allow the parties
to argue these factors. The court has considered the factors named by the
parties, and the parties’ written and oral arguments.5 Based on everything it
heard, the court imposes a penalty at the lower end of the statutory range:
$14,000 per violation. See 28 C.F.R. § 85.5(a) (setting a range of $13,508 to
$27,018 per violation). The court discusses the factors that weighed most
heavily in its decision to impose a lower-end penalty below.
A. The Egregiousness of the BJCTA’s violation
Again, the jury found that the BJCTA knowingly submitted false claims,
but acquitted executive director Murdock, Strada, and Strada’s owner Watters
of any wrongdoing. The best way to read this verdict consistent with the
evidence is that the BJCTA was stuck between a rock and a hard place. The
BJCTA had to honor two things: (1) the City of Birmingham’s choice of Strada
to be the program manager for the BRT project and (2) its obligation to comply
with the Brooks Act and FTA Circular 4220.1F when assigning A&E projects.
The BJCTA was placed in a bind when the independent committee ranked the
City’s disfavored firm (WRA) over the City’s chosen firm (Strada). Rather than
follow the law and regulations by first negotiating A&E projects with WRA,
the BJCTA Board decided to sign the top three firms so that Strada could get
all the work. The Board told its newly minted director (Murdock) what to do,
and she signed off on Strada’s truthful invoices to seek federal funds.6
5The court considered these factors: (1) Does the damage award make the government whole,
(2) did the defendant cooperate with any investigation, (3) was the defendant’s conduct
particularly egregious, (4) were the violations pervasive, (5) what was the defendant’s level
of scienter, (6) what is fair, (7) did the defendant accept responsibility, (8) how serious was
the defendant’s misconduct, (9) how much did the investigation cost, (10), harm to the public,
(11) the defendant’s ability to pay, (12) comparison of penalties to damages, (13) the need for
deterrence, (14) was the federal agency vindicated, and (15) the totality of circumstances.
(See Doc. 251, pp.7-8; Doc. 254, pp. 3-4; Doc. 256, p. 5; Doc. 258, p. 4-5; Doc. 261, p. 8-9).
6The jury found that Murdock didn’t know she was submitting false claims and that Strada
and Watters did not create any false records. (Doc. 231).
41
That the BJCTA Board or counsel told Murdock to sign a contract with
Strada four weeks before the Board resolved to sign contracts with the top
three firms suggests that the BJCTA knowingly—not negligently—chose to
follow the City’s directive over the law’s requirement. That’s egregious and
warrants a higher penalty.
But several factors temper the egregiousness. First, only three of the first
33 task orders required Brooks Act compliance, making it a small part of the
bigger picture. Second, no one at the BJCTA stood to financially gain from the
decision to let Strada do the A&E work. Third, there was no evidence that
Strada inflated its costs to pocket extra money on A&E projects.
In short, the egregiousness factor prevents the court from imposing the
minimum penalty. But this factor is tempered by the circumstances, and it is
outweighed by the remaining factors the court discusses below.
B. Making the Government whole
As discussed, the BJCTA must pay the full amount of grant funds that
it used to pay Strada as damages—about $1.44 million. This damage award
fully reimburses the Government’s tangible financial interest.
The BJCTA has to pay another $2.88 million because the FCA requires
the court to impose “three times the amount of damages which the Government
sustains[.]” 31 U.S.C. § 3729(a). The court finds that this extra $2.88 million
fully reimburses the Government’s intangible interest in promoting
compliance with laws and regulations that govern awards of government-
funded contracts.
In short, assuming the higher courts agree that the proper amount of the
Government’s damages is the full amount paid, this court finds that the
imposition of treble damages makes the government whole. So this factor
weighs heavily in favor of a lower-end penalty.7
7If
higher courts subtract the $1.078 million value of Strada’s work off of the base damage
amount, then this factor would instead weigh in favor of an increased penalty on remand.
42
C. Deterrence
Penalties aside, this case will cost the BJCTA a lot of money: over $4.3
million in damages, plus an untold amount of litigation expenses, costs, and
attorney’s fees for both sides. See 31 U.S.C. § 3730(d)(2) (requiring an FCA
defendant to pay to Relators “an amount for reasonable expenses which the
court finds to have been necessarily incurred, plus reasonable attorneys’ fees
and costs”). The court finds that these expenses alone provide a healthy
deterrent against future violations of the Brooks Act and FCA, so a lower-end
penalty is warranted.
D. Public Harm
Finally, this is an odd instance in which an increased penalty enhances

the public’s harm. As explained, the award of base damages makes federal
taxpayers whole. And the award of treble damages, plus lower-end penalties,
plus litigation costs and fees deters future violations, which helps restore local
taxpayers’ trust in their government agencies.
Heaping more penalties on top of an already hefty bill injures local

taxpayers because they are footing the bill. The BJCTA is a nonprofit public
corporation funded by participating municipalities, beer taxes, property taxes,
ridership fees, and other public sources. So imposing higher penalties would
punish innocent taxpayers and transit riders—not the BJCTA decision makers
from 2015 to 2018, none of whom remain at the BJCTA.8 This factor above all
warrants a lower-end penalty.
To sum up, the court finds that the BJCTA must pay $14,000 for each of
its 22 violations. So the court will grant in part and deny in part Relators’
motion for penalties (doc. 253) and impose a penalty of $308,000.
8 The BJCTA has turned over all board members and the executive director since Relators
filed their complaint. Only Walker (the grants director) remains, and the evidence suggests
Walker was innocent of any wrongdoing.
43
CONCLUSION
For these reasons, the court rules on the post-trial motions as follows:
• The court denies the BJCTA’s Rule 50(b) motion (doc. 239), which
means the jury’s verdict against the BJCTA on Count III stands;
• The court grants Relators’ Rule 50(b) motion (doc. 240), which means
the base damage amount for Count III is $1,438,467.74 and results in
a treble damage award of $4,315,403.22; and,
• The court grants in part and denies in part Relators’ motion for
civil penalties (doc. 253) and penalizes the BJCTA $14,000 for each of
its 22 FCA violations, resulting in a penalty award of $308,000.
DONE and ORDERED on March 7, 2023.
_________________________________
COREY L. MAZE
UNITED STATES DISTRICT JUDGE
44

BJCTA Order March 7, 2023

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Case 2:18-cv-00567-CLM Document 274 Filed 03/07/23 Page 1 of 44 FILED

2023 Mar-07 PM 02:01

UNITED STATES DISTRICT COURT

STARR CULPEPPER, et al.,

v. Case No. 2:18-cv-567-CLM

The court rules on the post-trial motions as follows:

A. The Jury’s Verdict

• Count III: the BJCTA and its executive director Barbara

• Count III: Strada and its owner Edmund Watters violated

• Count V: the four Defendants conspired with each other to

• Count VI: the BJCTA fired Relator Starr Culpepper because

B. The Trial Evidence

Birmingham-based Strada Professional Services LLC (Strada) proposed

In any event, Strada submitted an original and revised proposal in May

3. Brooks Act Procurement: To use federal grant funds to pay for

o Step 1: The BCJTA must discuss, “with at least 3 firms,”

o Step 2: The BJCTA must select, “in order of preference, at least

o Step 3: The BJCTA must negotiate a contract “with the most

Five firms submitted their qualifications. The BJCTA convened an

4. The BJCTA Task Orders: The independent committee issued its

Murdock eventually signed a contract with #2-ranked Wendel in April

6. Post-trial briefing: That brings us back to where we started—i.e., the

1. Rule 50(b) Motion: In considering a motion for judgment as a matter

A. BJCTA’s Rule 50(b) Motion

The BCJTA argues that Relators failed to present sufficient evidence on

1. Falsity (i.e., Implied False Certification)

The Supreme Court affirmed this “implied false certification” theory in

Accordingly, we hold that the implied certification theory can be a

As you’ll see, the Escobar Petitioner (United Health Services) conveyed

A. The use of codes in Escobar

1. The facts: Relator Julio Escobar was the stepfather of Yarushka

Yarushka’s parents later discovered that only one of the five

The clinic and its director mispresented the employees’ qualifications

We need not resolve whether all claims for payment implicitly

[B]y submitting claims for payment using payment codes that

Accordingly, we hold that the implied certification theory can be a

Id. at 190 (highlight added).

B. The use of codes in this case

“Task 12.” (Id.).

Q: Why is that Ms. Murdock?

A: They wanted to make sure that we were using the funds

(Tr. Ex. 41, p. 53, circles added).

2. Applying Escobar: Again, the court’s task is to determine whether

Q: When you’re in ECHO, and specifically as it relates to

Q: Does it require you to check a box saying: I have complied

Q: So nothing like that exists in ECHO?

A: No. So the ECHO is for you to make – simply make a

Q: When you say approved activity within a grant application,

A: Yes. Each grant application has a scope and an activity line

these activities were funded, one scope could be NEPA.

As a result, the court finds that Relators provided enough evidence to

2. Scienter (i.e. “knowingly presents”)

The BCJTA is liable for presenting false claims only if it “knowingly

(A) Mean that a person, with respect to information—

(i) has actual knowledge of the information;

(ii) acts in deliberate indifference of the truth or falsity of

(iii) acts in reckless disregard of the truth or falsity of the

A. Brooks Act violation

40 U.S.C. § 1103. Selection procedure

(a) In General.--These procedures apply to the procurement of

(b) Annual Statements.--The agency head shall encourage firms to

(c) Evaluation.--For each proposed project, the agency head shall

(d) Selection.--From the firms with which discussions have been