690 F. App'x 551
9th Cir.
2017

UNITED STATES EX REL. Mark MCGRATH, Plaintiff-Appellant, v. MICROSEMI CORPORATION; White Electronic Designs Corporation, DBA Microsemi Power and Electronics Group, Defendants-Appellees.

No. 15-17206, No. 15-17478

United States Court of Appeals, Ninth Circuit

May 05, 2017

551

Argued and Submitted April 18, 2017, San Francisco, California

the IJ discussed what corroborative evidence was necessary but mentioned only evidence regarding Nacheva‘s career as a lawyer.

We agree that Nacheva‘s husband and children may have corroborated Nacheva‘s claim regarding when she decided to permanently remain in the United States. “However, the [IJ and] BIA‘s reliance on the absence of testimony from [Nacheva‘s family] was error under Ren because the IJ did not give [Nacheva] notice and an opportunity to present the corroborative testimony before denying [her] asylum application.” Bhattarai, 835 F.3d at 1046. As a result, the IJ and BIA improperly relied on the lack of corroborating evidence in denying relief.

Accordingly, all five bases for the IJ and BIA‘s adverse credibility determination are either unsupported by substantial evidence or rely upon impermissible factors. Further, the IJ and BIA erred in relying on the absence of corroborating evidence without giving Nacheva notice and an opportunity to present that evidence.

PETITION FOR REVIEW GRANTED AND REMANDED.

George F. Carpinello, Teresa Monroe, Boies, Schiller & Flexner LLP, Albany, NY, for Plaintiff-Appellant

Jeffrey Harlan Reeves, Gibson, Dunn & Crutcher LLP, Irvine, CA, David B. Rosenbaum, Attorney, Thomas Lee Hudson, Esquire, Attorney, Jana L. Sutton, Osborn Maledon, PA, Phoenix, AZ, Sean S. Twomey, Gibson Dunn & Crutcher LLP, Los Angeles, CA, Theodore B. Olson, Esquire, Jonathan Phillips, Gibson, Dunn & Crutcher LLP, Washington, DC, for Defendant-Appellee Microsemi Corporation

Jeffrey Harlan Reeves, Gibson, Dunn & Crutcher LLP, Irvine, CA, David B. Rosenbaum, Attorney, Thomas Lee Hudson, Esquire, Attorney, Jana L. Sutton, Osborn Maledon, PA, Phoenix, AZ, Sean S. Twomey, James Louis Zelenay, Jr., Gibson Dunn & Crutcher LLP, Los Angeles, CA, for Defendant-Appellee White Electronic Designs Corporation

Before: D.W. NELSON and IKUTA, Circuit Judges, and BURGESS,* Chief District Judge.

MEMORANDUM **

Mark McGrath, on behalf of the United States of America, appeals the district court‘s order dismissing his qui tam complaint under Rules 8(a) and 9(b) of the Federal Rules of Civil Procedure and denying leave to amend. We have jurisdiction under 28 U.S.C. § 1291.

McGrath‘s complaint failed to state a false certification claim under the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, because the complaint failed to plead facts plausibly alleging that compliance with the International Traffic in Arms Regulations (ITAR) was material to the Government‘s decision to pay White Electronic Designs Corporation and Microsemi Corporation (collectively, “Microsemi“). Universal Health Servs., Inc. v. United States ex rel. Escobar, — U.S. —, 136 S.Ct. 1989, 2002-03, 195 L.Ed.2d 348 (2016). Moreover, even assuming that the statement “ITAR controlled” on Microsemi‘s receipts constituted a false representation that Microsemi was in compliance with ITAR, the complaint cannot plead facts sufficient to support an inference that Microsemi knew it had failed to comply with ITAR at the time of the representation because Microsemi‘s good faith interpretation of the term “disclose” in 22 C.F.R. § 120.17 at that time was reasonable. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 70 n.20, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). Because McGrath cannot establish Microsemi‘s scienter as a matter of law, and has not indicated what facts he could add to the complaint to establish that Microsemi‘s alleged ITAR violation was material to the Government‘s payment decision, the district court did not err in denying leave to amend. See id.; Hildes v. Arthur Andersen LLP, 734 F.3d 854, 859 (9th Cir. 2013).

Finally, McGrath waived his argument that Microsemi provided the Government worthless products by failing to raise it in his opening brief. Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). To the extent McGrath is now raising the modified argument that Microsemi knowingly demanded payment for products that had lost value due to Microsemi‘s failure to comply with ITAR, such a claim fails for the same reasons as his false certification claim.1

AFFIRMED.

* The Honorable Timothy M. Burgess, United States Chief District Judge for the District of Alaska, sitting by designation.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Notes

1
1. McGrath failed to raise his FCA claim for fraud in the inducement before the district court. We therefore decline to address this issue on appeal. Bolker v. Comm‘r of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir. 1985).