United States ex rel. Totten v. American National Red Cross, 381 F.3d 61 (D.C. Cir. 2004)
Totten v. American National Red Cross occupies an important place in the pre-2009 False Claims Act (FCA) jurisprudence because it sits at the intersection of two recurring questions: the scope of the FCA's then-existing "presentment" requirement and the status of federally chartered instrumentalities like the American National Red Cross under federal liability statutes.
1) Is the American National Red Cross a "person" subject to suit under the False Claims Act, or is it immune as an arm of the federal government? 2) Under the pre-2009 version of § 3729(a)(1), does the FCA require that a false claim be presented to an officer or employee of the United States, such that claims made only to non-federal recipients fall outside the statute?
Pre-2009 31 U.S.C. § 3729(a)(1) imposed liability on any person who knowingly presents, or causes to be presented, to an officer or employee of the United States Government a false or fraudulent claim for payment or approval. Although § 3729(c) broadly defined "claim" to include demands for money made to grantees, contractors, or other recipients if federal funds were involved, that definition did not eliminate the distinct presentment requirement embedded in § 3729(a)(1). An entity's federal charter or instrumentality status does not automatically equate it with the United States for purposes of FCA defendant status; unless Congress indicates otherwise, corporations and similar entities are typically treated as "persons" under the FCA.
The D.C. Circuit held that the American National Red Cross is a "person" subject to suit under the False Claims Act and is not the United States for purposes of FCA defendant immunity. However, consistent with the pre-2009 text of § 3729(a)(1), the court held that a relator must allege presentment of a false claim to an officer or employee of the federal government; claims predicated solely on submissions to non-federal recipients or intermediaries are not actionable under § 3729(a)(1). The court affirmed dismissal to the extent the complaint relied only on non-federal presentment, while recognizing that allegations of direct presentment to federal officials could proceed if adequately pleaded.
Totten v. American National Red Cross is significant for two reasons. First, it confirms that the American National Red Cross is a suable "person" under the FCA, not an arm of the sovereign for FCA purposes. Second, it is a prominent example of the D.C. Circuit's pre-2009 insistence on the FCA's presentment requirement, a reading later altered by Congress in the 2009 Fraud Enforcement and Recovery Act (FERA), which amended § 3729(a)(1) and restructured liability provisions to reach claims involving federal funds without strict presentment to a federal officer. For law students, Totten sharpens skills in statutory interpretation, institutional status analysis, and understanding how congressional amendments respond to judicial constructions.