United States ex rel. Barrick v. Parker-Migliorini Int'l, No. 16-4136 (10th Cir. 2017)Annotate this Case
Brandon Barrick brought an action under the False Claims Act on behalf of the United States, alleging his former employer Parker-Migliorini International (PMI) illegally smuggled beef into Japan and China. At the time of the scheme, China banned all imports of U.S. beef, and Japan imposed heightened standards, under which certain types of U.S. beef would have been banned. Barrick alleged PMI cheated the government out of the inspection fees that would have been paid if PMI had complied with federal law. In Barrick’s view, an “obligation” to pay the government arose when the USDA was informed that meat was being exported to a country with inspection standards higher than those in the United States. Thus, the government should have been paid for the inspections that would have occurred if PMI had accurately reported the destination countries. The Tenth Circuit disagreed with Barrick's reasoning: "[a]n established duty is one owed at the time the improper conduct occurred, not a duty dependent on a future discretionary act." Here, the obligation would not have arisen absent a third-party meat supplier’s independent wrongful conduct. This was because the meat supplier supplied the destination country to the USDA, thus controlling the type of inspection performed. But PMI did not use meat suppliers who were eligible to export beef to Japan. So, for an obligation to arise, the supplier would have had to report an accurate - and illegal - destination country to the USDA, even though the supplier was not eligible to export to that country. This conduct does not create an established duty under the Act. Because the Court did not find Barrick could adequately plead the existence of such an “obligation” by PMI as the Act required, it affirmed the district court’s denial of Barrick’s motion for leave to amend.