                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0249p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________

                                                     X
                               Plaintiff-Appellant, -
 UNITED STATES OF AMERICA, ex rel. SNAPP, INC.,
                                                      -
                                                      -
                                                      -
                                                          No. 07-1474
          v.
                                                      ,
                                                       >
 FORD MOTOR COMPANY,                                  -
                              Defendant-Appellee. -
                                                      -
                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Eastern District of Michigan at Detroit.
                      No. 06-11848—Avern Cohn, District Judge.
                                      Argued: April 24, 2008
                                 Decided and Filed: July 9, 2008
                 Before: SUHRHEINRICH, CLAY, and COOK, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Jeffrey Dale Stamper, Louisville, Kentucky, for Appellant. Francis R. Ortiz,
DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellee. ON BRIEF: E. Powell Miller,
David Fink, THE MILLER LAW FIRM, Rochester, Michigan, for Appellant. Francis R. Ortiz,
Kenneth J. McIntyre, DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellee.
        CLAY, J., delivered the opinion of the court. SUHRHEINRICH, J. (p. 13), delivered a
separate concurring opinion. COOK, J. (p. 14), delivered a separate opinion concurring in part and
dissenting in part.
                                        _________________
                                            OPINION
                                        _________________
          CLAY, Circuit Judge. Relator SNAPP, Inc. brings this qui tam action under the False
Claims Act, 31 U.S.C. § 3729 et seq., claiming that Defendant Ford Motor Company (“Ford”)
fraudulently induced the federal government to contract with Ford by inflating, in official reports
to the government, the extent of Ford’s dealings with small and minority-owned businesses. The
district court dismissed Relator’s complaint for failure to comply with Fed. R. Civ. P. 9(b)’s
requirement that a party alleging fraud “state with particularity the circumstances constituting fraud
. . . .” Because Relator failed to plead with such particularity the nature of Ford’s claim for payment
from the federal government, we AFFIRM the district court’s decision dismissing Relator’s First

                                                  1
No. 07-1474                     SNAPP v. Ford Motor Co.                                                          Page 2

Amended Complaint. However, because the district court did not have the benefit of our decision
in United States ex rel Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 502 (6th Cir. 2007)
(“Bledsoe II”) before denying Relator’s motion to file an amended complaint, we VACATE the
district court’s order denying the motion to file an amended complaint and REMAND the matter
for consideration in light of Bledsoe II.
                                           STATEMENT OF FACTS
A.       Factual Allegations
        Because Relator is appealing a district court order dismissing its complaint under Rule
12(b)(6), this Court must accept as true all of the factual allegations contained the complaint.1
Bovee v. Coopers & Lybrand C.P.A., 272 F.3d2 356, 360 (6th Cir. 2001). According to Relator, Ford
is a “prime contractor” to the United States, and is accordingly required to comply with certain
federal laws governing the use of small and minority-owned businesses as subcontractors. Among
these requirements, a prime contractor may not contract with the federal government unless they
establish a plan to “provide[] the maximum practicable opportunity”       for small businesses and
minority-owned businesses to subcontract with the prime contractor.3 15 U.S.C. § 637(d)(4)(D).
Failure to develop such a plan can render a prime contractor ineligible to receive federal contracts.
See id.
         Relator alleges that, from 1991 until 1999, Ford fraudulently exaggerated the extent of its
dealings with small and minority-owned businesses, and that these exaggerations induced the federal
government to contract with Ford, even though Ford never implemented a plan to “provide[] the
maximum practicable opportunity” to such businesses. According to Relator, during this eight-year
period Relator was controlled entirely by Ford. Ford nominated the majority of Relator’s board
members, its organization charts included Relator and its employees, and Ford had full control over
its dealings with Relator. Though Relator was nominally owned and managed by a person of color,
Relator maintains that this nominal control was a sham, and that Relator actually operated as a
subdivision of the Ford Motor Company. Moreover, Relator claims, even if it did qualify as a
minority-owned business during its dealings with Ford, from 1995 until 1999, Relator had too many
employees to qualify as a small business.
        Despite Relator’s claims that it functioned entirely as a subdivision of Ford, Ford filed
official reports with the government stating that, between 1991 and 1998, Ford made significant
improvements in the amount of business it subcontracted to small and minority-owned businesses.
As a prime government contractor, Ford was required to file yearly reports documenting what
percentage of the subcontracts related to its government contracts were made with small or minority-
owned businesses. According to these reports, Ford increased its subcontracting with small
businesses from 19.2% in 1991 to 22.9% in 1998, reaching a peak of 24% in 1993. Over the same
period, Ford also increased its subcontracting with small minority-owned businesses from 2.6% of

         1
          Unless otherwise specified, the word “complaint” will refer to Relator’s First Amended Complaint, which is
the subject of most of Relator’s claims on appeal.
         2
          The term “prime contractor” refers to a general contractor who is eligible to contract directly with the federal
government. See United States ex rel. Sanders v. Allison Engine Co., Inc., 471 F.3d 610, 612 (6th Cir. 2006); vacated
on other grounds by Allison Engine Co., Inc. v. United States ex rel. Sanders, — S.Ct. —, 2008 WL 2329722 (June 9,
2008).
         3
          Specifically, federal law requires prime contractors to establish a plan to provide opportunities to “socially
and economically disadvantaged small business concern[s],” which is defined as a small business in which racial, ethnic
and cultural minorities who have historically experienced discrimination hold at least a 51% ownership share of the
business. 15 U.S.C. § 637(a)(4) & (5).
No. 07-1474                       SNAPP v. Ford Motor Co.                                                         Page 3

the total amount of its government-related subcontracts to 4.8%. In its 1999 report, Ford stated that
23.3% of its government-related subcontracts were made with small businesses. Although this
report also shows a sharp decline in the amount of subcontracts made with small minority-owned
businesses, the report also indicates that Ford intended to purchase $3.3 billion worth of supplies
from minority-owned businesses, a statement which, if true, would have reflected to an increase in
Ford’s dealings with such businesses between 1998 and 1999.
         The crux of Relator’s complaint is that, despite Ford’s reports claiming that it had enacted
and was successfully implementing a plan to “provide[] the maximum practicable opportunity” to
small and minority-owned businesses, Ford had inflated the extent of its dealings with such
businesses by fraudulently declaring money paid to Relator as a subcontract with a small and
minority-owned business. According to Relator, “the Relator was being used by Ford as a conduit
for the satisfaction of Ford’s, not the Relator’s, obligations to Ford’s majority suppliers of goods and
services to Ford.” (J.A. 245) Ford, Relator claims, would subcontract with a large, majority-owned
business; Ford would then launder its payments to that large, majority-owned business through
Relator. Under this scheme, Relator would receive those payments only for the purpose of passing
them through to the large, majority-owned subcontractor, but Ford would still report these
transactions to the government as a subcontract with a small, minority-owned business.
        Relator further alleges that Ford knowingly or recklessly submitted reports that exaggerated
its dealings with small and minority-owned businesses, and that these exaggerations were
substantial. In 1998, for example, Ford reported that it paid $2.46 billion to small, minority-owned
subcontractors. According to Relator, however, $461 million of this $2.46 billion were sham
payments laundered through Relator. Similarly, in 1999 Ford predicted in its reports to the
government that it would pay $3.3 billion to small, minority-owned subcontractors, but Relator
claims that $556 million of this $3.3 billion were sham payments.
        In light of these alleged sham payments, Relator claims that had the federal government been
aware that Ford was exaggerating its dealings with small and minority-owned businesses, it would
not have permitted Ford to act as a prime contractor. Accordingly, Relator argues, none of the
federal government contracts Ford received during the period that it was allegedly inflating its
dealings with small and minority-owned businesses would have been awarded to Ford. Because
these contracts were allegedly awarded to Ford as a direct result of Ford’s fraudulent statements,
Relator further claims that none of the payments made to Ford under these contracts would have
been made had Ford not deceived the government.
B.       Procedural History
        On April 30, 2003, Relator filed its original complaint, under seal, in the Southern District
of Ohio. 4That complaint was unsealed on July 19, 2004, when the United States declined to
intervene. Nevertheless, process was not served on Ford until February 10, 2006, and only after
the Southern District of Ohio issued two orders inquiring into the reason for this delay. Despite the
delay, Ford stipulated to its acceptance of this service, and does not allege on appeal that this case
should be dismissed on account of the delay. On April5 14, 2006, the parties also stipulated to a
transfer of this case to the Eastern District of Michigan.

         4
          A qui tam action is a False Claims Act claim brought by a relator, a private person alleging fraud by
government contractors against the government. 31 U.S.C. § 3730. The relator must first serve the complaint upon the
government, and the complaint then remains under seal for at least sixty days. § 3730(b)(2). During this time period, the
government may elect to intervene. If the government does not intervene in the action, the relator may proceed with the
action.§ 3730(b)(4)(B), (c)(3).
         5
             Except as otherwise indicated, we use the term “district court,” to refer to the Eastern District of Michigan.
No. 07-1474                      SNAPP v. Ford Motor Co.                                                            Page 4

        On September 7, 2006, the district court issued an order dismissing a portion of Relator’s
claim and ordering Relator to file an amended complaint. In issuing this order, the district court
reached two holdings which are relevant to this appeal. First, the district court concluded that the
statute of limitations for a qui tam action is six years, and accordingly held that any of Relator’s
claims pre-dating April 30, 1997—six years prior to the filing of this claim—must be dismissed as
untimely. Additionally, the district court held that Relator’s original complaint did not comply with
the particularity requirements of Fed. R. Civ. P. 9(b), finding that this complaint “contains no
allegations as to which claims submitted by Ford would not have been paid” but for Ford’s alleged
fraudulent statements. (J.A. 208) Accordingly, the court ordered Relator to amend its complaint
in order to bring it into compliance with Rule 9(b).
        Relator filed its First Amended Complaint on October 4, 2006, and shortly thereafter, it filed
copies of the annual reports Ford had submitted to the government in order to retain its eligibility
as a prime contractor. In a February 1, 2007 order, the district court dismissed this amended
complaint, holding that it still had not “identified any contract that Ford was allegedly wrongfully
awarded as a result of being a Prime Contractor.” (J.A. 356) On February 9, 2007, Relator filed a
motion, which the district court construed as a motion to vacate its dismissal of this case under Rule
59(e) and to permit Relator to subsequently file a Second Amended Complaint. Accompanying this
motion were additional copies of Ford’s 1991–99 reports to the federal government. Although
Relator argued that these reports constituted new evidence justifying the reconsideration of its case,
the district court concluded that it had already considered these reports in the context of its decision
dismissing the First Amended Complaint, and denied Relator’s motion.
       Relator now appeals to this Court, arguing that the district court erred in dismissing its
complaint, in denying reconsideration of its case, and in holding that the statute of limitations in qui
tam cases is six years.
                                                    DISCUSSION
I.       THE PARTICULARITY REQUIREMENT OF RULE 9(B) AND RELATOR’S FIRST
         AMENDED COMPLAINT
                                                 Standard of Review
         Relator alleges fraud in its complaint, and therefore must comply with Fed. R. Civ. P. 9(b).
Dismissal of a complaint for failure to comply with Rule 9(b) is reviewed as a dismissal for failure
to state a claim. See United States ex rel Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 502 (6th
Cir. 2007) (“Bledsoe II”). Accordingly, such a dismissal is reviewed de novo. Id. In the qui tam
context, “the Court must construe the complaint in the light most favorable to the plaintiff, accept
all factual allegations as true, and determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct.
1955, 1974 (2007)6). Under the special pleading rules contained in Rule 9(b), a complaint alleges

         6
           At present, there is some confusion as to when a court should require particular facts to be pled, as required
by Twombly, and when a court should apply a more liberal pleading standard. See Iqbal v. Hasty, 490 F.3d 143, 155–58
(2d Cir. 2007). Twombly held that in some cases, a plaintiff must plead particular facts in their complaint. 127 S.Ct.
at 1965. In Erickson v. Pardus, 127 S.Ct. 2197 (2007), a case decided just two weeks after Twombly, the Supreme Court
clarified Twombly by holding that a prisoner bringing a § 1983 claim against his captor is not required to state “[s]pecific
facts” in their complaint; Erickson, 127 S.Ct. at 2200, and Twombly itself suggests that its holding may be limited to
cases likely to produce “sprawling, costly, and hugely time-consuming” litigation. 127 S.Ct. at 1973 n. 6; see also Iqbal,
490 F.3d at 157–158.
          Nevertheless, the instant case arises under the heightened pleading standard applicable to allegations of fraud,
which itself requires the party alleging fraud to “state with particularity the circumstances constituting fraud or mistake.”
Fed. R. Civ. P. 9(b). As Rule 9(b)’s express language requires a pleading alleging fraud to state specific facts, applying
No. 07-1474                     SNAPP v. Ford Motor Co.                                                         Page 5

sufficient facts to survive a motion to dismiss when the plaintiff states “with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
                                                       Analysis
        When a qui tam relator pleads “a complex and far-reaching fraudulent scheme” it must
“provide[] examples of specific false claims submitted to the government pursuant to that scheme”
in order to comply with Rule 9(b). Bledsoe II, 501 F.3d at 510. For the reasons which follow, we
hold that Relator has not met this standard, and therefore conclude that the decision of the district
court should be affirmed with respect to the dismissal of Petitioner’s complaint on Rule 9(b)
grounds.
A.       Rule 9(b) Generally
         Although Rule 9(b)’s special pleading standard is undoubtedly more demanding than the
liberal notice pleading standard which governs most cases, see Erickson, 127 S.Ct. at 2200, Rule
9(b)’s special requirements should not be read as a mere formalism, decoupled from the general rule
that a pleading must only be so detailed as is necessary to provide a defendant with sufficient notice
to defend against the pleading’s claims. See Bledsoe II, 501 F.3d at 503 (“[I]t is clear that the
purpose of Rule 9 is not to reintroduce formalities to pleading, but is instead to provide defendants
with a more specific form of notice as to the particulars of their alleged misconduct.”); see also
Sanderson v. HCA-The Healthcare Company, 447 F.3d 873, 877 (6th Cir. 2006) (holding that a
complaint may be dismissed under Rule 9(b) if it contains “no specific information about the filing
of the claims themselves—nothing, that is, to alert the defendants ‘to the precise misconduct with
which they are charged and to protect defendants against spurious charges of immoral and fraudulent
behavior’ ” (quoting United States ex. rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1310
(11th Cir. 2002))). Instead, Rule 9(b) should be interpreted in harmony with Rule 8’s statement that
a complaint must only provide “a short and plain statement of the claim” made by “simple, concise,
and direct allegations.” Id. (quoting Fed. R. Civ. P. 8(a)). This Rule 8 requirement is born out of
a need to ensure fundamental fairness for defendants—a complaint need not provide an exhaustive
roadmap of a plaintiff’s claims, but it must be sufficient to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson, 127 S.Ct. at 2200 (quoting
Twombly, 127 S.Ct. at 1964). So long as a complaint provides the defendant with such minimal
notice, Rule 8’s requirements are met.
        Rule 9(b) adds additional pleading requirements for allegations of fraud or mistake, but it
should not be read to defeat the general policy of “simplicity and flexibility” in pleadings
contemplated by the Federal Rules. Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 678
(6th Cir. 1988) (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE: CIVIL § 1298, at 407 (1969)). Rather, Rule 9(b) exists
predominantly for the same purpose as Rule 8: “to provide a defendant fair notice of the substance
of a plaintiff ’s claim in order that the defendant may prepare a responsive pleading.” Id. Rule 9(b),
however, also reflects the rulemakers’ additional understanding that, in cases involving fraud and
mistake, a “more specific form of notice” is necessary to permit a defendant to draft a responsive
pleading. Bledsoe II, 501 F.3d at 503.
         In our recent decision in Bledsoe II, we reiterated our long-standing holding that, under Rule
9(b), a plaintiff must “allege the time, place, and content of the alleged misrepresentation . . . the
fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.”

Erickson’s liberal pleading standard would be inappropriate in the instant case, regardless of whether this case involves
the kind of “sprawling, costly and hugely time-consuming” litigation which generally triggers Twombly’s special
pleading rule.
No. 07-1474                SNAPP v. Ford Motor Co.                                             Page 6

Id. at 504. As Bledsoe II also made clear, however, this requirement should be understood in terms
of Rule 9(b)’s broad purpose of ensuring that a defendant is provided with at least the minimum
degree of detail necessary to begin a competent defense. “Essentially, [a complaint] should provide
fair notice to Defendants and enable them to ‘prepare an informed pleading responsive to the
specific allegations of fraud.’” Id. (quoting Advocacy Org. for Patients & Providers v. Auto Club
Ins. Ass'n, 176 F.3d 315, 322 (6th Cir.1999)). So long as a relator pleads sufficient detail—in terms
of time, place and content, the nature of a defendant’s fraudulent scheme, and the injury resulting
from the fraud—to allow the defendant to prepare a responsive pleading, the requirements of Rule
9(b) will generally be met. While additional detail may be “relevant to the inquiry of whether a
relator had pled the circumstances constituting fraud with particularity, it is not mandatory.” Id. at
506.
        It is worth noting, however, that although Rule 9(b)’s overarching purpose is to ensure that
a defendant possesses sufficient information to respond to an allegation of fraud, two related
concerns are implicit in this overarching purpose. See Banca Cremi, S.A. v. Alex. Brown & Sons,
Inc., 132 F.3d 1017, 1036, n. 25 (4th Cir. 1997) (listing three purposes behind Rule 9(b)). First, by
requiring a relator to state with particularity the basis for a claim of fraud, Rule 9(b) discourages
“fishing expeditions and strike suits” which appear more likely to consume a defendant’s resources
than to reveal evidences of wrongdoing. Bledsoe II, 501 F.3d at 510. Because the defendant is
informed of which of its specific actions allegedly constitute fraud, it can limit discovery and
subsequent litigation to matters relevant to these allegations. Additionally, Rule 9(b)’s particularity
requirement protects a qui tam defendant from unwarranted damage to its reputation caused by
“spurious charges of immoral and fraudulent behavior.” Sanderson, 447 F.3d at 873 (quoting
Clausen, 290 F.3d at 1310). Because the defendant is notified immediately of the focus of a relator’s
complaint, it can quickly resolve frivolous disputes by attacking the narrow basis of an allegation
of fraud.
B.     Rule 9(b) and the False Claims Act
       1.      The Elements of a Qui Tam Claim
         Having determined the requirements of Rule 9(b) generally, we now turn to its application
in the qui tam context. In relevant part, the False Claims Act imposes liability on a person who
“knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or
fraudulent claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(2). As this statutory
language suggests, a claim under these portions of the False Claims Act has several elements. First,
the defendant must have made a false statement or created a false record, and must have done so
“with ‘actual knowledge,’ ‘deliberate ignorance,’ or ‘reckless disregard of the truth or falsity of the
information.’” United States ex rel. Augustine v. Century Health Services, 289 F.3d 409, 413 (6th
Cir. 2002). Second, the defendant must have submitted a claim for payment to the federal
government. See United States ex rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 447 (6th Cir.
2008). Third, the defendant’s false statement must have been made with the purpose of “getting a
false or fraudulent claim ‘paid or approved by the Government.’” Allison Engine Co., Inc. v. United
States ex rel. Sanders, — S.Ct. —, 2008 WL 2329722 (June 9, 2008) (quoting § 3729(a)(2)).
Finally, the defendant’s false statement or record must have been material to the government’s
decision to make the payment sought in the defendant’s claim. United States ex rel. A+ Homecare,
Inc. v. Medshares Management Group, Inc., 400 F.3d 428, 443 (6th Cir. 2005).
       2.      The Particularity Requirement
       Under Rule 9(b), “a party must state with particularity the circumstances constituting fraud
or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.” Accordingly, insofar as a qui tam action is concerned with Ford’s “knowledge,” this
No. 07-1474                     SNAPP v. Ford Motor Co.                                                          Page 7

element does not need to be pled with particularity.7 Fed.R.Civ.P. 9(b). Similarly, it is not
necessary for Relator to plead with particularity its claim that Ford made a false statement with the
purpose of getting a false claim paid or approved by the government, as the question of whether
Ford acted with a particular purpose inquires into the company’s state of mind, and an inquiry
regarding Ford’s state of mind may only be pled generally. Id. Nevertheless, Relator must comply
with Rule 9(b)’s special pleading rules in pleading the remaining elements—that is, Relator must
provide sufficient details regarding the time, place and content of Ford’s alleged false statements,
Ford’s claim for payment from the federal government, and the manner in which the false statements
induced the government to make a claimed payment to Ford, to allow Ford to adequately prepare
a responsive pleading. See Bledsoe II, 501 F.3d at 509.
        Relator has identified allegedly false or fraudulent statements made by Ford with sufficient
particularity. According to Relator’s complaint:
         Ford fraudulently represented to the United States that payments made by Ford to
         Relator were payments to a small business concern owned and controlled by socially
         and economically disadvantaged individuals when, in fact, these payments were a
         sham; the Relator was being used by Ford as a conduit for the satisfaction of Ford’s,
         not the Relator’s obligations to Ford’s majority suppliers of goods and services to
         Ford.
(J.A. 245) Moreover, Relator alleges, these fraudulent misrepresentations were made in particular
reports filed annually with the federal government, and Relator has provided copies of these reports
which are included in the record. In identifying these reports, Relator states with particularity “the
time, place, and content of the alleged misrepresentation.” Bledsoe II, 501 F.3d at 504.
Accordingly, Relator has met its burden of identifying false or fraudulent statements made by Ford
with particularity.
        The same cannot be said, however, with respect to the requirement that Relator identify with
particularity a claim for payment by Ford. Under the False Claims Act, a “claim” is defined as
         any request or demand, whether under a contract or otherwise, for money or property
         which is made to a contractor, grantee, or other recipient if the United States
         Government provides any portion of the money or property which is requested or
         demanded, or if the Government will reimburse such contractor, grantee, or other
         recipient for any portion of the money or property which is requested or demanded.
§ 3729(c). Relator essentially argues that, during the time that it was allegedly making false reports
to the government, Ford entered into a large, undetermined number of contracts with the federal
government, and that the government made hundreds of millions of dollars of payments to Ford as
a result of these contracts. When a relator alleges such a “complex and far-reaching fraudulent
scheme” to induce the government into making payments, however, Bledsoe II requires the relator’s
complaint to include specific examples of the defendant’s claims for payment from the federal
government. See id. at 510. “In order for a relator to proceed to discovery on a fraudulent scheme,
the claims that are pled with specificity must be ‘characteristic example[s]’ that are ‘illustrative of
[the] class’ of all claims covered by the fraudulent scheme.” Id. at 510–11 (alterations in original);
see also id. at 514–15 (affirming a claim of widespread Medicare and Medicaid fraud when the
Relator identified a single, representative patient who was fraudulently diagnosed to induce payment
from the government).

         7
           Relator expressly alleges in its complaint that Ford has been “knowingly or recklessly submitting to the United
States claims that Ford knew were false and/or otherwise ineligible for payment,” (J.A. 244), and Ford does not contest
that Relator has sufficiently pled the scienter element of its qui tam claim.
No. 07-1474                SNAPP v. Ford Motor Co.                                              Page 8

        Despite the requirement that Relator must provide specific examples of claims submitted to
the government as part of Ford’s alleged fraudulent scheme, Relator does not provide a single
example of a specific claim made by Ford. Instead, Relator merely alleges that “[f]rom 1991
through at least 2001, Ford was awarded contracts on an annual basis by the General Services
Administration.” (J.A. 240) Although Relator also provides an estimate of the approximate value
of these contracts during the years 1991–2000, Realtor does not identify any individual
representative claim for payment made by Ford to the federal government during this time period.
Accordingly, we hold that Relator has not complied with Bledsoe II’s mandate that “‘[i]n order for
a relator to proceed to discovery on a fraudulent scheme,’ it must pled with specificity ‘characteristic
example[s]’ that are ‘illustrative of [the] class’ of all claims covered by the fraudulent scheme.” 501
F.3d at 510–11; see also Sanderson, 447 F.3d at 877 (“Rule 9(b) ‘does not permit a False Claims
Act plaintiff merely to describe a private scheme in detail but then to allege simply . . . that claims
requesting illegal payments must have been submitted, were likely submitted or should have been
submitted to the Government.’” (quoting Clausen, 290 F.3d at 1310)). We therefore affirm the
decision of the district court dismissing Relator’s complaint.
II.    RELATOR’S MOTION TO FILE AN AMENDED COMPLAINT
                                         Standard of Review
       Subsequent to the district court’s decision dismissing Relator’s complaint, Relator filed a
motion seeking leave to file a Second Amended Complaint, which the district court properly
construed as a motion to vacate the dismissal of Relator’s complaint under Rule 59(e). The district
court has discretion to grant or deny such a motion, so its decision to deny the motion is reviewed
for abuse of discretion. Intera Corp. v. Henderson, 428 F.3d 605, 619 (6th Cir. 2005).
                                               Analysis
         Subsequent to the district court’s decision dismissing its complaint, Relator sought leave to
file a Second Amended Complaint, which included “a listing of the contracts, the contracts value,
and the number of vehicles awarded to Ford Motor Company for the period from 1991 to 1999.”
(J.A. 21) In a March 16, 2007 order, the district court denied Relator’s motion to file a Second
Amended Complaint, holding that the amendment would be futile because Relator “has simply been
unable to frame its allegations within the confines of the FCA.” (Id.) On September 6, 2007, this
Court handed down a new rule of law in Bledsoe II, holding that a qui tam case may proceed to
discovery if the relator’s complaint “pleads a complex and far-reaching fraudulent scheme with
particularity, and provides examples of specific false claims submitted to the government pursuant
to that scheme.” 501 F.3d at 510. Because the district court did not have an opportunity to consider
our holding in Bledsoe II before denying the motion to file an amended complaint, we remand
Relator’s appeal of this denial for further consideration in light of Bledsoe II.
         Although Relator filed his motion to file a Second Amended Complaint subsequent to the
district court’s final order dismissing Relator’s First Amended Complaint, we allow a district court
discretion to set aside a prior judgment under Rule 59(e) and permit an amended complaint to be
filed under such circumstances. See Oleson v. United States, 27 F. App’x 566, 570 n.1 (6th Cir.
2001); see also 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 1489 (2d ed. 1990) (“Most courts faced with the problem have held that once a
judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or
vacated under Rule 59 or Rule 60.”) Setting aside judgment in this manner is appropriate in four
circumstances: if there is: “(1) a clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to prevent manifest injustice.” Henderson v.
Walled Lake Consolidated Schools, 469 F.3d 479, 496 (6th Cir. 2006) (emphasis added).
No. 07-1474                      SNAPP v. Ford Motor Co.                                                            Page 9

         Relator’s proposed Second Amended Complaint provides far greater detail than its First
Amended Complaint, stating that “[f]rom 1991 through 1999, Ford was awarded 65 contracts by the
GSA,” and even identifying many of those contracts by their “Ford Contract Nos.,” thus providing
Ford with the specific  filing numbers it uses to identify individual contacts within its own internal
accounting system.8 (J.A. 381–82) Nevertheless, the question of whether, in light of our
intervening decision in Bledsoe II, the district court should grant the motion to file an amended
complaint rests within the district court’s discretion. Insofar as Bledsoe II may now justify granting
the motion to file an amended complaint, the district court should be permitted to exercise its
discretion regarding that motion in the first instance—an appellate court generally should not
substitute its own judgment for a district court’s unexercised discretion. See Bledsoe II, 501 F.3d
at 521 n.22; Nash v. Eberlin, 437 F.3d 519, 526 n.10 (6th Cir. 2006). Accordingly, we vacate the
district court’s denial of Relator’s motion to file a Second Amended Complaint, and remand the
matter to allow the district court to decide whether to exercise its discretion in light of Bledsoe II.

        On remand, the district court should consider whether the following rule, which we
articulated in Bledsoe II, justifies setting aside its prior judgment and allowing Relator to amend its
complaint:
         We conclude that the concept of a false or fraudulent scheme should be construed as
         narrowly as is necessary to protect the policies promoted by Rule 9(b). Specifically,
         we hold that the examples that a relator provides will support more generalized
         allegations of fraud only to the extent that the relator's examples are representative
         samples of the broader class of claims. In order for a relator to proceed to discovery
         on a fraudulent scheme, the claims that are pled with specificity must be
         “characteristic example[s]” that are “illustrative of [the] class” of all claims covered
         by the fraudulent scheme. The examples of false claims pled with specificity should,
         in all material respects, including general time frame, substantive content, and
         relation to the allegedly fraudulent scheme, be such that a materially similar set of
         claims could have been produced with a reasonable probability by a random draw
         from the total pool of all claims. With this condition satisfied, the defendant will, in
         all likelihood, be able to infer with reasonable accuracy the precise claims at issue
         by examining the relator's representative samples, thereby striking an appropriate
         balance between affording the defendant the protections that Rule 9(b) was intended
         to provide and allowing relators to pursue complex and far-reaching fraudulent
         schemes without being subjected to onerous pleading requirements.
501 F.3d at 510–11 (internal citations omitted). In reconsidering Relator’s motion in light of
Bledsoe II, the “governing principle” guiding the district court’s consideration should be whether

         8
            Indeed, in contrast to the dissent’s contention, the new details included in the Second Amended Complaint
include several examples of false claims. Similar to Relator’s First Amended Complaint, the Second Amended
Complaint identifies specific false statements made by Ford, thereby fulfilling one of the elements of a false claim. See
Augustine, 289 F.3d at 413. Unlike the First Amended Complaint, however, the Second Amended Complaint also
identifies numerous claims for payment Ford submitted to the federal government—another necessary element of a false
claim. Marlar, 525 F.3d at 447. For example, in ¶45 of the Second Amendment Complaint, Relator alleges that the
federal government paid Ford’s claims for payment pursuant to “Ford Contract Nos. 10048, 10099, 10147, 10152, 10162,
10165, 95021, and 95042,” and these payments were in the “respective amounts of $28,778,143.00, $12,181,678.00,
$3,132,114.00, $31,556.00, $8,960,822.00, $32,409,513.52, $11,116,100.00, $16,319,424.00 and $168,397,635.00.”
(J.A. 382) Moreover, the Second Amended Complaint also alleges “[i]n response to Ford’s claims for payment, the GSA
paid Ford money under each contract that it would not have paid Ford had it been aware that the Subcontract Plans and
SF-295 Forms submitted by Ford were false.” (J.A. 384) This allegation complies with Rule 9(b)’s requirement that
Relator plead with particularity that Ford’s alleged false statement or record was material to the government's decision
to make the payment requested by Ford. A+ Homecare, Inc., 400 F.3d at 443. As we have already explained in Part
I of this opinion, Rule 9(b) does not require a relator to plead any additional elements of a false claim with particularity.
No. 07-1474                 SNAPP v. Ford Motor Co.                                             Page 10

vacating its order dismissing Relator’s complaint, and allowing the amended complaint, “is required
in order to prevent an injustice; and where an injustice will otherwise result, the trial judge has the
duty as well as the power to order a new trial.” Davis by Davis v. Jellico Community Hospital, Inc.,
912 F.2d 129, 133 (1990).
        Finally, we acknowledge that, in light of the Supreme Court’s recent decision in Allison
Engine Co. v. United States ex rel. Sanders, the law in this Circuit is now less friendly to qui tam
plaintiffs than it was prior to that decision. In Sanders, the Supreme Court held that a qui tam
plaintiff may only prevail upon a showing that the defendant made a false statement with the purpose
of “getting a false or fraudulent claim ‘paid or approved by the Government.’” 2008 WL 2329722,
at *5 (quoting § 3729(a)(2)). Because Rule 9(b) exempts allegations of “malice, intent, knowledge,
and other conditions of a person’s mind” from its heightened pleading requirement, it is not
necessary, at least at this early stage of the litigation, for Relator to allege with particularity facts
showing that Ford acted with a particular purpose. Fed. R. Civ. P. 9(b). Nevertheless, because the
district court has not had the opportunity to consider Relator’s proposed Second Amended
Complaint in light of Sanders, it would also be inappropriate for us to impose our view of whether
Sanders prevents Relator from filing his Second Amended Complaint when the district court has not
had the opportunity to consider this question in the first instance. See Bledsoe II, 501 F.3d at 521
n.22; Nash, 437 F.3d at 526 n.10. Accordingly, we will allow the district court to consider this issue
on remand.
III.    STATUTE OF LIMITATIONS
        Finally, Relator challenges the district court’s determination that the statute of limitations
in a qui tam case brought by a private party relator is always six years. The False Claims Act
permits a suit alleging fraud against the government to proceed in multiple ways. First, the Attorney
General, upon discovering a potential violation of the Act, may initiate a civil action against the
person committing fraud. 31 U.S.C. § 3730(a). Additionally, any person who is the “original
source” of information implicating a potential defendant in an act of fraud against the government
may bring a suit as a relator in the name of the United States. § 3730(b)(1) & (e)(4)(A). Before
filing such a suit, the relator must first serve the complaint upon the government, and the complaint
must remain under seal for at least sixty days. § 3730(b)(2). During this time period, the
government may “take over” the action, in which case all future litigation is conducted by the
government. § 3730(b)(4)(B). If the government declines to do so, however, the relator may
proceed with the litigation at its own direction, with the caveat that the government may later
intervene upon a showing of good cause. § 3730(c)(3). Should a suit initiated by a relator prove
meritorious, the relator is entitled to a share of the proceeds, although the lion’s share of these
proceeds will be awarded to the government. § 3730(d).
        Under 31 U.S.C. § 3731, the statute of limitations for a claim brought under the False Claims
Act is as follows:
No. 07-1474                      SNAPP v. Ford Motor Co.                                                        Page 11

         (b) A civil action under section 3730 may not be brought--
                  (1) more than 6 years after the date on which the violation of section 3729 is
                  committed, or
                  (2) more than 3 years after the date when facts material to the right of action
                  are known or reasonably should have been known by the official of the
                  United States charged with responsibility to act in the circumstances, but
                  in no event more than 10 years after the date on which the violation
                  is committed,
         whichever occurs last.
§ 3731(b). The applicability of the § 3731(b)(2) tolling provision to suits litigated       entirely by
private party relators appears to be an issue of first impression before this Circuit.9 Relying on the
Ninth Circuit’s decision in United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211 (9th Cir.
1996), Relator argues that, notwithstanding § 3731(b)(2)’s reference to an “official of the United
States charged with responsibility to act in the circumstances,” the extended statute of limitations
period contained in that subsection should nonetheless be applied to suits litigated by a private-party
relator. Under the Ninth Circuit’s view, “the statute of limitations begins to run once [the] qui tam
plaintiff knows or reasonably should have known the facts material to this right of action.” Id. at
1217.
        United States courts of appeal are not united around the Ninth Circuit’s view. Ford argues
that we should apply the Tenth Circuit’s decision in United States ex rel. Sikkenga v. Regence
Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir. 2006), which held that “the tolling provision
of § 3731(b) was not intended to apply to private qui tam suits.” Id. at 725. Additionally, a handful
of federal judges confronted with the question of § 3731(b)(2)’s applicability to private party relators
have adopted a third view. Under this third way of resolving the statute of limitations question,
“[t]he appropriate standard for determining when the three year limitation period in § 3731(b)(2)
began to run is when the Department of Justice received information as to the violation.” United
States ex rel. Colunga v. Hercules, Inc., No. 89-CV-954B, 1998 WL 310481, at *5 (D.Utah Mar.6,
1998); see Sikkenga, 472 F.3d at 735 (Hartz, J., dissenting).
         Because we affirm the district court’s dismissal of Relator’s complaint on Rule 9(b) grounds,
however, it is not necessary for us to resolve whether the § 3731(b)(2) tolling provision applies to
private party relators. Moreover, inasmuch as this statute of limitations question could be raised
again should the district court grant Relator’s motion for leave to file an amended complaint, the
district court has not yet granted that motion, and thus the issues raised by Relator’s proposed
Second Amended Complaint do not currently raise a live controversy before this Court.
Accordingly, the statute of limitations question is not presently ripe for review by this Court. See
United States v. Lee, 502 F.3d 447, 450 (6th Cir. 2007).
                                                  CONCLUSION
         The district court correctly determined that Relator’s First Amended Complaint does not
comply with the particularity requirement of Rule 9(b). However, because our recent decision in
Bledsoe II alters the law governing Relator’s motion to file a Second Amended Complaint, the
district court should be permitted to decide whether to exercise its discretion in light of the currently

         9
           Bledsoe II stated that six years is “the statute of limitations under the [False Claims Act],” 501 F.3d at 515,
but it contains no discussion of § 3731(b)(2)’s tolling provision, and the applicability of that provision to private-party
relators does not appear to have been raised in Bledsoe II.
No. 07-1474            SNAPP v. Ford Motor Co.                                 Page 12

applicable rule of law. Accordingly, we AFFIRM the dismissal of Relator’s First Amended
Complaint, VACATE the order denying the motion to amend that complaint, and REMAND for
further consideration of that motion in light of Bledsoe II.
No. 07-1474                SNAPP v. Ford Motor Co.                                          Page 13

                                       _________________
                                        CONCURRENCE
                                       _________________
        SUHRHEINRICH , Circuit Judge, concurring. I concur in Judge Clay’s opinion, except to
the extent footnote 8 suggests that the Second Amended Complaint, as drafted, complies with Fed.
R. Civ. Proc. 9(b). Our instruction for the district court to consider Bledsoe II should not be taken
to imply that the district court must grant Relator leave to file an amended complaint, or that the
Second Amended Complaint, as drafted, is sufficient.
No. 07-1474                     SNAPP v. Ford Motor Co.                                                      Page 14

                       _______________________________________________
                        CONCURRING IN PART, DISSENTING IN PART
                       _______________________________________________
        COOK, Circuit Judge, concurring in part and dissenting in part. The majority reaches the
right conclusion with regard to the district court’s dismissal of Relator’s First Amended Complaint.
Relator’s failure to “provide a single example of a specific [false] claim” doomed that complaint
because Fed. R. Civ. P. 9(b) “‘does not permit a False Claims Act plaintiff merely to describe a
private scheme in detail but then to allege simply . . . that claims requesting illegal payment must
have been submitted, were likely submitted or should have been submitted to the Government.’”
Maj. Op. at 13, 14 (quoting Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir.
2006)).
         But having correctly concluded that Relator’s First Amended Complaint deserves dismissal,
the majority nevertheless keeps alive the Second Amended Complaint, despite the district court’s
finding that it too failed to identify a false claim. JA 21. 1Although the majority cannot point to a
false claim identified by the Second Amended Complaint, it vacates and remands after concluding
that United States ex rel. Bledsoe v. Cmty. Health Sys., Inc. (“Bledsoe II”), 501 F.3d 493 (6th Cir.
2007), announced an intervening change in controlling law which the district court ought to apply
in the first instance. Bledsoe II, however, broke new ground on an impertinent issue—whether every
false claim must be identified by a False Claims Act plaintiff alleging a complex, fraudulent scheme.
Id. at 509–10. It did not disturb, alter, or modify the requirement to specifically identify at least one
false claim—“the sine qua non of a False Claims Act violation.” Sanderson, 447 F.3d at 878
(internal quotation marks omitted); see also Maj. Op. at 5–8 (affirming dismissal of Relator’s First
Amended Complaint for failing to identify “a specific [false] claim”). Because the Second Amended
Complaint also identifies no false claim, I see no reason to remand to the district court so that it may
reissue the same decision. Nor do I see a reason to require another panel of this court to re-confront
this case—it should be resolved today.
         Accordingly, I respectfully dissent from part II of the majority’s opinion.

         1
          In his footnote 8, Judge Clay highlights specific contracts that the plaintiffs allege the government awarded
to Ford as a result of Ford’s fraud and the dollar value attached to those contracts. But a contract is not a claim.


14-2861
Hofman v. Schiavone

                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                                     SUMMARY ORDER

   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.  CITATION TO A
   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
   CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
   ʺSUMMARY ORDERʺ).  A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
   ANY PARTY NOT REPRESENTED BY COUNSEL.

   At a stated term of the United States Court of Appeals for the Second Circuit, held at the
   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
   on the 13th day of November, two thousand fifteen.

   PRESENT:  ROBERT A. KATZMANN,
                                       Chief Judge,
                        ROSEMARY S. POOLER,
                        DENNY CHIN,
                                       Circuit Judges.
   ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

   PIA HOFMANN,
                                      Plaintiﬀ‐Appellant,

                                           v.                                                        14‐2861‐cv

   SCHIAVONE CONTRACTING CORP., INTERNATIONAL
   UNION OF OPERATING ENGINEERS LOCAL 14‐14B,
                    Defendants‐Appellees,

   GEORGE A. STAMBOULIDIS, ESQ., Ethical Practice
   Attorney for IUOE Local 14‐14B, UNITED STATES OF
   AMERICA,
                         Intervenors‐Appellees,

   SCHIAVONE CONSTRUCTION CO. LLC,
                   Defendant‐Cross Defendant‐Appellee,
JOHN HASSLER,
                                   Defendant‐Cross Claimant‐Third Party
                                   Plaintiﬀ‐Appellee,

SKANSKA USA CIVIL NORTHEAST, INC., J.F. SHEA
CONSTRUCTION,
                  Third Party Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT PIA                                          MICHAEL G. OʹNEILL, Law Oﬃces of
HOFMANN:                                                             Michael G. OʹNeill, New York, New York.

FOR DEFENDANT‐CROSS DEFENDANT‐                                       MARC S. WENGER, Kimberly N.
APPELLEE SCHIAVONE                                                   Dobson, Timothy J. Domanick, Jackson
CONSTRUCTION CO. LLC:                                                Lewis P.C., Melville, New York.

FOR DEFENDANT‐APPELLEE             JAMES M. STEINBERG, Brady, McGuire
INTERNATIONAL UNION OF             & Steinberg, P.C., Tarrytown, New York.
OPERATING ENGINEERS LOCAL 14‐14B:

FOR INTERVENOR‐APPELLEE GEORGE                                       LAUREN J. RESNICK, Patrick T.
A. STAMBOULIDIS:                                                     Campbell, Denise D. Vasel, Baker &
                                                                     Hostetler LLP, New York, New York.

FOR INTERVENOR‐APPELLEE UNITED                                       RICHARD K. HAYES, Varuni Nelson,
STATES OF AMERICA:                                                   Assistant United States Attorneys, for
                                                                     Loretta E. Lynch, United States Attorney
                                                                     for the Eastern District of New York,
                                                                     Brooklyn, New York.

FOR DEFENDANT‐CROSS CLAIMANT‐                                        JOSEPH H. GREEN, Law Oﬃce of Joseph
THIRD PARTY PLAINTIFF‐APPELLEE                                       H. Green, PLLC, Tarrytown, New York.
JOHN HASSLER:

                    Appeal from the United States District Court for the Eastern District of

New York (Johnson, J.).

                                                               ‐ 2 ‐
              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiﬀ‐appellant Pia Hofmann appeals from a judgment entered on July

16, 2014, by the United States District Court for Eastern District of New York (Johnson,

J.), which granted defendantsʹ motion for summary judgment and dismissed her claims

in full, including her gender discrimination claim under New York City Human Rights

Law (ʺNYCHRLʺ), N.Y.C. Admin. Code § 8‐107(1)(a), and her hybrid § 301(a)/duty of

fair representation claim under the Labor Management Relations Act (the ʺLMRAʺ), 29

U.S.C. § 185(a).  The district court explained its reasoning in a memorandum and order

filed the same day.  Previously, on January 31, 2013, following argument, the district

court orally quashed a subpoena for documents that Hofmann had served on the

Ethical Practice Attorney (the ʺEPAʺ), who had been appointed pursuant to a consent

decree in other litigation.  We assume the partiesʹ familiarity with the underlying facts

and procedural history of the case.

              Hofmann is a female crane operator who is a member of defendant‐

appellee International Union of Operating Engineers Local 14‐14B (ʺLocal 14ʺ).  This

case arises out of her allegations that Local 14, defendant‐appellee John Hassler (her

supervisor), and her employer instituted a shift to follow her shift on her crane,

employed Hasslerʹs son (John Hassler, Jr.) to work that later shift, and then removed

Hofmannʹs shift one week later, laying her oﬀ.  Hofmann claims that she should have

                                           ‐ 3 ‐
been allowed to take Hassler, Jr.ʹs shift or the shift of an operator on a diﬀerent crane

with whom she had previously switched cranes.  We address in turn Hofmannʹs

arguments that the district court: (1) erred in granting summary judgment and (2)

abused its discretion by quashing her subpoena.

1.     Summary Judgment on NYCHRL and Hybrid Claims

              ʺWe review de novo the district courtʹs grant of summary judgment,

construing the evidence in the light most favorable to the non‐moving party and

drawing all reasonable inferences in her favor.ʺ  Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).  A movant is entitled to summary judgment if

ʺthere is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.ʺ  Fed. R. Civ. P. 56(a).  We ask whether ʺthe record taken as

a whole could not lead a rational trier of fact to find for the non‐moving party.ʺ

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).  On appeal,

Hofmann argues that the district court erred in granting summary judgment on both

her NYCHRL gender discrimination claim and her hybrid § 301/duty of fair

representation claim.  We disagree.

              First, we generally analyze gender discrimination claims under the

McDonnell Douglas burden‐shifting framework.  See Dawson v. Bumble & Bumble, 398

F.3d 211, 216‐17 (2d Cir. 2005).  Under that framework, once the plaintiﬀ demonstrates a

prima facie case, the burden shifts to the defendant to provide a legitimate, non‐

                                             ‐ 4 ‐
discriminatory reason for its actions.  See Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir.

2006).  ʺ[T]he final and ultimate burden is on the plaintiﬀ to establish that the

defendantʹs reason is in fact pretext for unlawful discrimination.ʺ  Abrams v. Depʹt of

Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014).

              ʺIt is unclear,ʺ however, ʺwhether, and to what extent, the McDonnell

Douglas burden‐shifting analysis has been modified for NYCHRL claims.ʺ  Mihalik, 715

F.3d at 110 n.8 (citing Melman v. Montefiore Med. Ctr., 98 A.D.3d 107 (N.Y. App. Div. 1st

Depʹt 2012); Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29 (N.Y. App. Div. 1st Depʹt

2011)).  But we need not resolve this issue, because under either the traditional

McDonnell Douglas framework or an arguably modified framework articulated in

Melman and Bennett, Hofmannʹs gender discrimination claim fails as a matter of law.

              No evidence suggests that appelleesʹ legitimate, non‐discriminatory

reason was pretextual or that appellees were motivated by gender animus.  Appellees

claimed that they no longer needed a crane operator for Hofmannʹs shift because

changes in the workflow made a later shift better able to accommodate deliveries and

coincide with certain construction operations.  Hofmannʹs claim of pretext is little more

than speculation that her employer, her union, and her supervisor collaborated to take a

coordinated series of actions culminating in her layoﬀ.  Likewise, the only evidence of

any gender animus consists of one sexually inflected dinner conversation between

Hassler and Hoﬀman nearly a year before the layoﬀ and Hasslerʹs subsequent rudeness

                                              ‐ 5 ‐
to her after she rebuﬀed him.  A reasonable jury could not find, on such meager

evidence, that appellees took their actions against Hofmann because of her gender.

               Second, to prevail on a hybrid § 301/duty of fair representation claim, ʺa

plaintiﬀ must prove both (1) that the employer breached a collective bargaining

agreement and (2) that the union breached its duty of fair representation vis‐a‐vis the

union members.ʺ  White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001).  To find that

the union breached its duty of fair representation, the plaintiﬀ must show that the

unionʹs conduct is ʺarbitrary, discriminatory, or in bad faith,ʺ Marquez v. Screen Actors

Guild, Inc., 525 U.S. 33, 44 (1998), and that such conduct caused her injuries, see Spellacy

v. Airline Pilots Assʹn‐Intʹl, 156 F.3d 120, 126 (2d Cir. 1998).

               Hofmann contends that her employer and Local 14 breached their

respective duties by denying her the opportunity either to operate her crane on a later

shift or to switch cranes with another operator.  A reasonable jury could not find that

the employer breached, however, because the collective bargaining agreement does not

even address crane rights.  Likewise, as to Local 14, its bylaws only require:

               If a contractor brings in a second machine to work alongside
               of the first machine, doing similar work on the same
               contract, and then decides to lay oﬀ one machine, the first
               engineer on the job would have a claim on the job for twenty
               (20) consecutive working days.  After twenty (20)
               consecutive working days, the engineerʹs claim is on the
               machine.

                                               ‐ 6 ‐
Suppl. J. App. at 237.  This provision, Hofmann concedes, is ʺnot strictly applicable,ʺ but

she asserts nonetheless that Local 14 breached it or other unwritten rules.  Appellantʹs

Br. at 35.  Local 14, however, interpreted the provision to mean that Hofmann only had

a right to ʺ[her] machine on [her] shift,ʺ not to a later shift or a diﬀerent crane.  Suppl. J.

App. at 182‐83.  Hofmann presents no contrary evidence on summary judgment that

this interpretation of an ambiguous bylaw was arbitrary, discriminatory, or in bad faith.

2.     Motion to Quash Hofmannʹs Subpoena

              We review an order to quash a subpoena for abuse of discretion.  In re

Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68 (2d Cir. 2003).  Hofmann sought in

subpoena Request 2 documents from the EPA appointed by the district court pursuant

to a consent decree between the Department of Justice and Local 14 to investigate and

eliminate corruption.  The EPA and the United States intervened and moved to quash,

asserting, inter alia, the attorney‐client privilege, attorney work product, investigatory

privilege, and special oﬃcer privilege as to 341 documents responsive to Request 2.  The

district court granted the motion.

              In our Circuit, we have not adopted a blanket ʺinvestigatoryʺ or ʺspecial

oﬃcerʺ privilege for consent decree monitors.  See United States v. Bleznak, 153 F.3d 16,

20 (2d Cir. 1998) (declining to address merits of investigatory or other privilege), aﬀʹg

United States v. Alex. Brown & Sons, Inc., 963 F. Supp. 235, 242‐43 (S.D.N.Y. 1997)

(addressing investigatory privileges, including ʺspecial oﬃcer privilegeʺ adopted in In

                                              ‐ 7 ‐
re LTV Securities Litigation, 89 F.R.D. 595 (N.D. Tex. 1981)).  We need not decide whether

to do so here because the record before the district court was suﬃcient to support a

finding that the documents sought in Request 2 were protected by the work product

doctrine.  The documents responsive to Request 2 consisted of e‐mails between the EPA

and his counsel as well as his counselʹs own investigative notes concerning Hofmannʹs

complaint that she was laid oﬀ in violation of Local 14ʹs bylaws.  The EPA was

operating under continuous anticipation of litigation given his role under the consent

decree.  Hofmann failed to demonstrate either a substantial need for the documents or

that she could not, without undue hardship, obtain their substantial equivalent by other

means, see Fed. R. Civ. P. 26(b)(3), as she could have obtained the documents or the

information contained therein directly from other custodians, witnesses, or defendants.

In these circumstances, the district court did not abuse its discretion in granting the

EPAʹs motion to quash.

              We have reviewed Hofmannʹs remaining arguments and conclude they

are without merit.  Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk

                                            ‐ 8 ‐


571 F.2d 1115
78-1 USTC  P 9410, 2 Fed. R. Evid. Serv. 1050
UNITED STATES of America, Appellee,v.Edgar F. X. SHIELDS, Appellant.
No. 77-1816.
United States Court of Appeals,Ninth Circuit.
March 9, 1978.

Michael J. Hemovich (argued), Spokane, Wash., for appellant.
Carroll D. Gray, Asst. U. S. Atty.  (argued), Spokane, Wash., for appellee.
Appeal from the United States District Court for the Eastern District of Washington.
Before MERRILL and ELY, Circuit Judges, and ORRICK,* District Judge.
ELY, Circuit Judge:

1
At a jury trial appellant Shields was convicted of three counts of willful evasion of income taxes for the years 1971 through 1973.  To prove its case, the Government introduced analyses of appellant's bank deposits and withdrawals.  The evidence reflected large deposits that could not be attributable to appellant's reported income.  In an effort to explain these deposits, appellant raised the "cash hoard" defense.  Appellant's accountant and business associate, one Brickert, testified that appellant had a cash hoard of approximately $33,000, part of which appellant stashed in his car, part at his home, and part at his nightclub.  Supposedly, appellant's cash hoard diminished during the prosecution years of 1971-1973 as appellant made periodic bank deposits from that reserve.  Brickert also testified that appellant received two loan repayments totalling $9000 during the years in question, which would constitute another nontaxable source of funds.  We affirm.

I.

2
Prior to trial, on June 19, 1975, the Internal Revenue Service (IRS) held a conference, attended by appellant, Brickert, and appellant's attorney, Randall, to discuss appellant's tax liability.  An IRS representative, Bouker, confronted appellant with his alleged tax deficiency and stated that the purpose of the conference was to permit "anyone to say anything" on behalf of the appellant.  Bouker specifically asked if appellant had nontaxable sources of funds that would explain his unaccounted for bank deposits.  At the conference Brickert mentioned only the two loan repayments.

3
At trial the prosecutor impeached Brickert by eliciting that Brickert had said nothing about a cash hoard at the IRS conference.  He argued that Brickert's silence was inconsistent with his testimony that he had personally observed appellant's cash hoard.  To augment this line of attack, Bouker later testified that Brickert had not referred to the cash hoard at the conference.  The prosecutor then asked Bouker whether Randall, appellant's attorney, had revealed any nontaxable sources of funds at the conference.  Appellant objected, the District Court sustained the objection, and the jury never heard an answer.  Finally, in the closing argument the prosecutor broadly referred to the failure to raise the cash hoard defense at the conference:

4
The defense which is raised here, and the one that where the evidence is produced for the first time in court, never occurred outside of the court before, before we started on the Tuesday a week ago, the government was never offered these explanations which

5
(Shields' counsel): If Your Honor please, at this time, I would like to move for a mistrial on the basis of . . .  that statement . . . .

6
(Prosecutor): I'm getting right into the matter of Brickert, what Brickert said, and Brickert's testimony on the stand.

7
(Prosecutor): I am not commenting on the defendant's failure to say anything.

8
THE COURT: Well, I think it was too general of a statement.

9
THE COURT: Well, I'm going to admonish the jury, but I'm not going to grant the motion for a mistrial.  . . .  Members of the jury, I want to call your attention to one of the instructions I just gave you, that the defendant on trial has no obligation to say anything, and anything he does say, or any silence is not to be used against him, . . . .

10
The silence of an accused at the time of arrest may not be used to impeach a defense subsequently offered at trial.  Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969).  The prohibition of such impeachment stems from the privilege against self-incrimination and from the representation implicit in the Miranda1 warnings that a defendant will not be penalized for his decision to remain silent.

11
Despite the urgings of appellant, we find the above rule inapplicable.  Appellant claims that the cross-examination of Brickert, Bouker's testimony concerning Brickert's silence at the IRS conference, and the prosecutor's closing argument reflected upon appellant, implying to the jury that appellant also had failed to mention his cash hoard at the IRS conference.2  Appellant concedes, as he must, that he was not cross-examined concerning his silence and that no direct evidence was introduced concerning his silence.  For this reason the rule against impeaching an accused by his prior silence does not apply, and we elect not to extend the rule to situations such as the present one in which the silence of nondefendant witnesses might conceivably suggest that the explanation of a defendant is a recent fabrication.

12
Rather, Fed.R.Evid. 403 contains the correct standard for determining whether evidence, though relevant and not directly concerning the silence of an accused, is nonetheless inadmissible because it circumstantially tends to suggest his silence.  Rule 403 grants discretion to the District Court to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ."  Twice the District Court instructed the jury that appellant had the right to remain silent and that his silence could not be used against him.  Clearly this minimized the possibility that the jury improperly considered whether appellant was silent at the IRS conference.  Thus, the District Court did not err in refusing to exercise its discretion under rule 403 to exclude the evidence of Brickert's silence.3

13
Appellant also maintains that Brickert's impeachment, apart from its reflection on appellant, was improper because Brickert's silence was "ambiguous."  The argument that Brickert's silence in and of itself lacked probative value was not presented to the District Court, and consequently we decline to consider it now.  See Gollaher v. United States, 419 F.2d 520, 523 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969).

II.

14
Pursuant to the routine practice of governmental agencies, officials destroyed the rough notes of interviews with four prospective witnesses.  It is not clear whether IRS agent Bouker made any notes at the conference with appellant, Randall, and Brickert.  All the interviews in question occurred during 1974 and 1975, and the notes were not verbatim transcripts of witnesses' statements.  The government officials prepared typed memoranda of the interviews, which were disclosed to appellant.

15
Appellant insists that the destruction of the notes violated the Jencks Act,  18 U.S.C. § 3500 (1970), and the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).  In United States v. Harris,543 F.2d 1247 (9th Cir. 1976), we held that rough interview notes constitute potentially discoverable material and therefore must be preserved.  Our court, however, has continually refused to apply the Harris rule retroactively in the absence of a specific demonstration that the destruction of notes resulted in prejudice.  United States v. Wood, 550 F.2d 435, 440 (9th Cir. 1976); United States v. Parker, 549 F.2d 1217, 1224 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. Robinson, 546 F.2d 309, 312 (9th Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1333, 51 L.Ed.2d 597 (1977).  Appellant does not contend that the interview memoranda are incomplete or inaccurate and does not otherwise specify any prejudice to his defense resulting from the destruction of the rough notes.  Accordingly, we conclude the appellant's contention in this respect must be rejected.

III.

16
Another issue presented here is whether the Government improperly used an Idaho grand jury to obtain the testimony of one of appellant's witnesses, a man named Popp.4  A memorandum from IRS agent Bouker, dated September 8, 1975, stated:

17
During the course of the investigation it became necessary to use the grand jury proceedings to elicit testimony from reluctant witnesses.  No prior judicial approval required under Rule 6(e) was obtained; however, the testimony was not relevant as regards the revenue agent's computation of gross or taxable income.

18
Appellant makes four related arguments concerning misuse of the grand jury.  First, he claims that Bouker's memorandum concedes a violation of Fed.R.Crim.P. 6(e).5 Second, he asserts that the IRS wrongfully used the Idaho grand jury to collect evidence and did not submit evidence to that grand jury for the purpose of obtaining its indictment.  Third, he asserts that at the time of Popp's testimony before the Idaho grand jury the IRS had not yet recommended criminal sanctions against appellant, and, therefore, the IRS was using the grand jury for the purpose of establishing appellant's civil tax liability.6  Last, appellant maintains that the Government's impeachment of Popp with the transcript of the proceedings before the Idaho grand jury was improper.  Generally, impeachment is a proper use of grand jury testimony, e. g., Gollaher v. United States, 419 F.2d 520, 523 (9th Cir.), cert. denied,  396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969), so appellant's contention must rest upon his previous arguments that the Idaho grand jury proceedings were illegal.

19
Appellant did not object at trial or even in posttrial proceedings to the Idaho or the Washington grand jury proceedings.  Nor did appellant object to Popp's impeachment.  We are unable to accept appellant's proffered excuse that he could not have known of the alleged grand jury misuse until too late in the trial to seek recourse.  Before trial began the Government had disclosed the Idaho grand jury transcript to appellant.  Bouker's memorandum was released to appellant's counsel sometime during the course of the trial.  Although the record does not reveal the exact date, it is clear that appellant had the memorandum in his possession on the day before the last trial day.  Thus, his failure to permit the district judge to evaluate the grand jury proceedings is unjustified, and we shall not review the alleged improprieties.  No plain error is evident, as the record contains nothing that can substantiate or disprove appellant's allegations.  Fed.R.Crim.P. 52(b).

IV.

20
The Government employed an analysis of appellant's bank deposits and withdrawals to establish appellant's understatement of taxable income.  Appellant contends that the Government did not attempt to prove appellant's "cash on hand" on January 1, 1970, the beginning date of the tax years in question.  The relevance of cash on hand is that if it were deposited into accounts during the tax years, it would explain those deposits and reduce the understatement of income.  Specifically, appellant claims that the Government did not follow leads that might have demonstrated currency withdrawals made in late 1969.

21
Special Agent White conducted the investigation of appellant's income tax liability, and there is sufficient evidence that he diligently pursued all leads that could have disclosed nontaxable sources of funds, including cash on hand.  White testified that he prepared a "complete analysis of all the bank accounts, savings and checking."  He also stated that he covered leads and properly credited appellant for all nontaxable sources and that he examined financial statements given by appellant to financial institutions.  There is no indication that White failed to evaluate 1969 withdrawals.  After his investigation, White decided to use a cash on hand figure of zero, having found no evidence of cash on hand.  An expert witness heard all the testimony at trial and examined all the exhibits, concluding that "there was insufficient evidence upon which to form a conclusion that there was cash on hand."

22
Looking at the evidence in a light most favorable to the Government, as we must, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) the Government clearly presented sufficient evidence for the jury to infer that White had adequately pursued all leads and had correctly shown as the proper amount of cash on hand the zero figure.

23
AFFIRMED.

*
 Honorable William H. Orrick, United States District Judge for the Northern District of California, sitting by designation

1
 Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

2
 We reject the Government's argument that this issue was not preserved for appeal.  It is true that appellant did not object to the cross-examination of Brickert on the basis that his silence reflected upon appellant; he only objected on the ground that the questions were argumentative.  Appellant, however, objected and moved for a mistrial during Bouker's testimony concerning Brickert's silence and during the prosecutor's reference during closing argument to the newness of the cash hoard defense.  In light of the latter objections, appellant fully preserved his right to challenge on appeal all the alleged indirect references to appellant's silence.  See United States v. Semensohn, 421 F.2d 1206, 1210 (2d Cir. 1970) (objection made on an incorrect ground preserved appeal because trial judge's attention was later focused on the proper reason for objection)

3
 For the purposes of this decision, we have assumed, as did the District Court, the impropriety of a direct reference to appellant's silence at the IRS conference.  This issue is not directly presented, and we express no view as to its merits.  Doyle, Hale, and Fowle all involved the impeaching use of the postarrest silence of an accused.  The IRS conferences, however, occurred during the preindictment stage.  The evidentiary use of such silence would not present a Miranda problem and might not be so inherently lacking of probative value so as to justify a per se rule

4
 It was the grand jury for the Eastern District of Washington that issued the indictment upon which appellant was convicted

5
 Fed.R.Crim.P. 6(e) provides:
Secrecy of Proceedings and Disclosure.  Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties.  Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminary to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

6
 See In re Grand Jury, Nos. 76-1893, 76-1995 (9th Cir. May 2, 1977) (proscribing civil use by IRS of grand jury information without adversary hearing resulting in finding that disclosure is reasonably necessary), withdrawn as moot (9th Cir. June 28, 1977)