United States Ex Rel. Jerome Palmieri v. Alpharma, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1388
UNITED STATES EX REL. JEROME PALMIERI,
Plaintiff – Appellant,
and
STATE OF CALIFORNIA; STATE OF DELAWARE; STATE OF FLORIDA;
STATE OF GEORGIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE
OF INDIANA; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF
MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF
NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF
OKLAHOMA; STATE OF RHODE ISLAND; STATE OF TENNESSEE; STATE OF
TEXAS; STATE OF WISCONSIN; THE DISTRICT OF COLUMBIA;
COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF VIRGINIA,
Plaintiffs,
v.
ALPHARMA, INCORPORATED; ALPHARMA PHARMACEUTICALS, LLC; KING
PHARMACEUTICALS, INCORPORATED; PFIZER, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:10-cv-01601-ELH)
Submitted: June 30, 2015 Decided: April 26, 2016
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.

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Anna C. Dover, Rolando G. Marquez, MILBERG, LLP, New York, New
York; John B. Isbister, Jaime W. Luse, TYDINGS & ROSENBERG, LLP,
Baltimore, Maryland, for Appellant. Steven J. Menashi, KIRKLAND
& ELLIS, LLP, New York, New York; John C. O’Quinn, Devin A.
DeBacker, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Relator Jerome Palmieri appeals the district court’s
dismissal of his qui tam complaint against his former employer,
Alpharma, Inc., and associated companies (collectively,
“Defendants”), under the False Claims Act (“FCA”). The district
court dismissed Palmieri’s complaint pursuant to Fed. R. Civ. P.
9(b), for failure to plead his claims of fraud with sufficient
particularity. In so ruling, the district court did not address
Defendants’ arguments that Palmieri’s claims were precluded by the
FCA’s first-to-file bar, 31 U.S.C. § 3730(b)(5) (2006),* and
public-disclosure bar, 31 U.S.C. § 3730(e)(4)(A) (2006), amended
by Patient Protection & Affordable Care Act, Pub. L. No. 111-148,
tit. X, sec. 10104(j)(2), 124 Stat. 119, 901-02 (2010).
Under the pre-2010 version of § 3730 that governs Palmieri’s
action, see United States ex rel. May v. Purdue Pharma L.P., 737
F.3d 908, 915 (4th Cir. 2013) (recognizing “that the 2010 FCA
amendments may not be applied to cases arising before the effective
date of the amendments”), both the first-to-file and public-
disclosure defenses are jurisdictional in nature, see id. at 914-
18, 920 (§ 3730(e)(4)(A)); United States ex rel. Carter v.
Halliburton Co., 710 F.3d 171, 181 (4th Cir. 2013) (§ 3730(b)(5)),
* The current version of § 3730(b)(5) is identical to the
version in effect at the time Palmieri’s claims arose.

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rev’d in part on other grounds, Kellogg Brown & Root Servs., Inc.
v. United States ex rel. Carter, 135 S. Ct. 1970 (2015). We
conclude, therefore, that the district court was obligated to
consider both defenses before assessing the sufficiency of
Palmieri’s complaint. Accordingly, we vacate the district court’s
order and remand this case for consideration in the first instance
of whether the FCA’s first-to-file bar or public-disclosure bar
deprived the district court of subject-matter jurisdiction.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
VACATED AND REMANDED

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