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Action Under False Claims Act Could Not Be Pursued As Maryland Air National Guardsmen Are Considered to be Members of the Federal Armed Forces

United States of America, ex rel., Robert S. Conover v. Todd M. Anthony, et al.
Case No. CCB-09-356 (D. Md. 2011)

By Eric M. Leppo, Associate
Semmes, Bowen & Semmes (

In this recently issued opinion from the U.S. District Court for the District of Maryland, authored by Judge Catherine C. Blake, the Court held that subject matter jurisdiction was lacking on the basis of the False Claims Act’s intramilitary immunity provision.

Robert S. Conover, a Captain in the Maryland Air National Guard, brought suit on behalf of the United States government under the False Claims Acts (“FCA”), 31 U.S.C. § 3730(b)(1) against twenty-seven (27) other current or former members of the Maryland Air National Guard. Specifically, Capt. Conover alleged that the Defendants claimed payment for completing training flights that they did not actually fly. Interestingly, Plaintiff’s suit was filed several years after he was cleared of charges alleging he requested payment for training flights that he had not flown.

Under the Air National Guard training instructions, fighter pilots like these Defendants may obtain training pay for no more than two training flights per day. To qualify for payment, such training flights are to last at least four (4) hours and include at least one takeoff and landing. Capt. Conover alleged that the Defendants defrauded the government by: (1) submitting payment claims for training flights when they did not actually fly on the specified date, and (2) submitting payment claims for performing two training flights in a single day when they completed only one.

The FCA contains an intramilitary immunity provision that bars a former or present member of the armed forces from asserting a qui tam action (such as this one) against another member of the armed forces if the action arises out of their service in the armed forces. 31 U.S.C. § 3730(e)(1). The Defendants argued that the immunity provision created an unequivocal bar to Capt. Conover’s action and prevented the Court from having subject matter jurisdiction.

The FCA does not provide a statutory definition for the term “armed forces” and Capt. Conover alleged that service in the Maryland Air National Guard, a state militia, would not qualify. However, the Defendants countered that as individuals, they were members of the armed forces due to their dual enlistment in the National Guard of the United States based upon Perpich v. Dep’t of Defense. 496 U.S. 334, 345 (1990) (explaining that “[s]ince 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States.”)

The Court noted that guardsmen can be said to wear three (3) separate hats: a civilian hat, a state militia hat, and an army hat, only one of which can be worn at a particular time. Further, the Defendants conducted the training flights at issue under 32 U.S.C. § 502; therefore, they were “performing inactive duty training required under federal law in accordance with regulations issued by the federal, not state, government.” Conover at *11. As such, the Defendants were serving as members of the federal armed forces as contemplated by the FCA, and the intramilitary immunity provision barred the action.