United States ex rel. Chiles v. Cooke Inc.

25-155
United States ex rel. Chiles v. Cooke Inc.
United States Court of Appeals
for the Second Circuit

August Term 2025
Argued: September 24, 2025
Decided: August 5, 2026
No. 25-155

U
NITED STATES EX REL. W. BENSON CHILES,
U
NITED STATES EX REL. CHRIS MANTHEY,

Plaintiffs-Appellants,

ABC,
UNITED STATES OF AMERICA, EX REL.,

Plaintiffs,

v.

C
OOKE INC., COOKE AQUACULTURE INC., COOKE OMEGA
INVESTMENTS INC., COOKE SEAFOOD USA INC., OMEGA
PROTEIN CORPORATION, OMEGA PROTEIN, INC., GLENN
COOKE, BRET D. SCHOLTES, BMO CAPITAL MARKETS CORP.,
ALPHA VESSELCO HOLDINGS, INC., also known as OCEAN
FLEET SERVICES, INC., ALPHA VESSELCO LLC., doing busi-
ness as
OCEAN HARVESTERS, SETH GREGORY DUNLOP,
GREGORY LAWSON DUNLOP, MONTGOMERY DEIHL,

2

Defendants-Appellees,

DEF,

Defendant.

Appeal from the United States District Court
for the Southern District of New York
No. 21-CV-5743, Jesse M. Furman, Judge.
Before: WESLEY, BIANCO, and ROBINSON, Circuit Judges.
Plaintiffs-Appellants W. Benson Chiles and Chris Manthey
filed this qui tam action, as relators on behalf of the United States
(“Relators”), against Defendants-Appellees Cooke Inc.
(“Cooke”), Cooke Aquaculture Inc., Cooke Omega Investments
Inc., Cooke Seafood USA Inc., Omega Protein Corporation
(“Omega”), Omega Protein, Inc., Glenn Cooke, Bret D. Scholtes,
BMO Capital Markets Corp., Alpha VesselCo Holdings, Inc.,
a/k/a Ocean Fleet Services, Inc., Alpha VesselCo LLC., d/b/a
Ocean Harvesters, Seth Gregory Dunlop, Gregory Lawson Dun-
lop, and Montgomery Deihl, alleging that Defendants defrauded
the United States when they applied for and secured fishing en-
dorsements. In their amended complaint, Relators assert that this
alleged fraudulent scheme violated the False Claims Act, 31
U.S.C. § 3729 et seq. (“FCA”), by misrepresenting to the Maritime
Administration (“MARAD”) the citizenship of the entity that ap-
plied for fishing endorsements, thereby inducing the issuance of
fishing endorsements to an ineligible non-U.S. entity and permit-
ting that entity to fish for menhaden, a commercially valuable
fish, in United States waters.

3

On January 3, 2025, the United States District Court for the
Southern District of New York (Jesse M. Furman, Judge) dis-
missed the amended complaint, concluding that Relators could
not establish that Defendants made a claim for property as re-
quired under 31 U.S.C. § 3729(a)(1)(A), (B), (C), or that Defendants
avoided or decreased any established obligation to pay money to
the United States, as required for a “reverse false claim” under 31
U.S.C. § 3729(a)(1)(G). The district court also denied Relators’ re-
quest for leave to file a further amended complaint. On appeal,
Relators argue that: (1) wild fish in public waters are property
under the FCA; (2) unassessed civil penalties allegedly incurred
by the Defendants, for violations of the American Fisheries Act of
1998 (“AFA”), can support a reverse false claim; and, alternatively,
(3) the district court abused its discretion in denying leave to add
a cause of action under the FCA.
We agree with the district court and hold that wild fish are not
“property” under the FCA, foreclosing the amended complaint’s
first three causes of action, and that the amended complaint fails
to state a reverse false claim because unassessed civil penalties
for alleged violations of the AFA do not constitute an “obligation
to pay” under the FCA. We also conclude that the district court
did not abuse its discretion in denying leave to file a second
amended complaint.
Accordingly, we AFFIRM the judgment of the district court.
B
RENDON DEMAY (Jack L. Millman, Brian
T. Goldman, and Daniel Fahrenthold, on
the brief), Holwell Shuster & Goldberg LLP,
New York, New York, for Plaintiffs-Appel-
lants.
Courtney Saleski and Jessica A. Masella,
DLA Piper LLP, New York, New York, for

4

Defendant-Appellee BMO Capital Markets
Corp.
JONATHAN Y. ELLIS (David J. Pivnick, Mi-
chael J. Podberesky, and Grace Greene
Simmons, on the brief), McGuireWoods
LLP, Raleigh, North Carolina, Chicago, Il-
linois, and Washington, District of Colum-
bia, for Defendants-Appellees Cooke Inc.,
Cooke Aquaculture Inc., Cooke Omega Invest-
ments Inc., Cooke Seafood USA Inc., Omega
Protein Corporation, Omega Protein, Inc.,
Glenn Cooke, and Bret D. Scholtes.
Robert Silverblatt and Andrew McCanse
Wright, K&L Gates LLP, Washington, Dis-
trict of Columbia, for Defendants-Appellees
Alpha VesselCo LLC, Alpha VesselCo Hold-
ings, Inc., Seth Gregory Dunlop, Gregory
Lawson Dunlop, and Montgomery Deihl.
Andrew B. Breidenbach, Theodora Oring-
her PC, Los Angeles, California, for Amici
Curiae Natural Resources Law and Property
Law Professors.

J
OSEPH F. BIANCO, Circuit Judge:
Plaintiffs-Appellants W. Benson Chiles and Chris Manthey
filed this qui tam action, as relators on behalf of the United States
(“Relators”), against Defendants-Appellees Cooke Inc.
(“Cooke”), Cooke Aquaculture Inc., Cooke Omega Investments
Inc., Cooke Seafood USA Inc., Omega Protein Corporation
(“Omega”), Omega Protein, Inc., Glenn Cooke, Bret D. Scholtes,

5

BMO Capital Markets Corp., Alpha VesselCo Holdings, Inc.,
a/k/a Ocean Fleet Services, Inc., Alpha VesselCo LLC., d/b/a
Ocean Harvesters, Seth Gregory Dunlop, Gregory Lawson Dun-
lop, and Montgomery Deihl, alleging that Defendants defrauded
the United States when they applied for and secured fishing en-
dorsements. In their amended complaint, Relators assert that this
alleged fraudulent scheme violated the False Claims Act, 31
U.S.C. § 3729 et seq. (“FCA”), by misrepresenting to the Maritime
Administration (“MARAD”) the citizenship of the entity that ap-
plied for fishing endorsements, thereby inducing the issuance of
fishing endorsements to an ineligible non-U.S. entity and permit-
ting that entity to fish for menhaden, a commercially valuable
fish, in United States waters.
On January 3, 2025, the United States District Court for the
Southern District of New York (Jesse M. Furman, Judge) dis-
missed the amended complaint, concluding that Relators could
not establish that Defendants made a claim for property as re-
quired under 31 U.S.C. § 3729(a)(1)(A), (B), (C), or that Defendants
avoided or decreased any established obligation to pay money to
the United States, as required for a “reverse false claim” under 31
U.S.C. § 3729(a)(1)(G). The district court also denied Relators’ re-
quest for leave to file a further amended complaint. On appeal,
Relators argue that: (1) wild fish in public waters are property
under the FCA; (2) unassessed civil penalties allegedly incurred
by the Defendants, for violations of the American Fisheries Act of
1998 (“AFA”), can support a reverse false claim; and, alternatively,
(3) the district court abused its discretion in denying leave to add
a cause of action under the FCA.
We agree with the district court and hold that wild fish are not
“property” under the FCA, foreclosing the amended complaint’s
first three causes of action, and that the amended complaint fails
to state a reverse false claim because unassessed civil penalties

6

for alleged violations of the AFA do not constitute an “obligation
to pay” under the FCA.
1
We also conclude that the district court
did not abuse its discretion in denying leave to file a second
amended complaint.
Accordingly, we AFFIRM the judgment of the district court.
BACKGROUND
2

The AFA requires that vessels 100 feet or greater in registered
length hold a “fishery endorsement” to “engage in the fisheries.”
46 U.S.C. § 12113(a), (b)(1). “A vessel owned by an entity is eligible
for a fishery endorsement only if at least 75 percent of the interest
in the entity, at each tier of ownership and in the aggregate, is
owned and controlled by citizens of the United States” (the “citi-
zenship requirement”). Id. § 12113(c)(1). Vessel owners must “file
a statement of citizenship setting forth all relevant facts regarding
vessel ownership and control with [MARAD] on an annual basis
to demonstrate compliance.” Id. § 12113(e)(1); see also 46 C.F.R.
§ 356.5(d) (providing the form affidavit that entities use to affirm
their citizenship and their vessel’s eligibility for a fishing endorse-
ment). If MARAD determines that a vessel owner meets the citi-
zenship requirement, it produces a determination letter that is
filed with the U.S. Coast Guard, which, in turn, issues the fishery
endorsement. Failure to comply with, or violation of, the citizen-
ship requirement results in revocation of the fishery endorse-
ment, 46 U.S.C. § 12113(h), and liability for a civil penalty that ac-
crues for each day of a continuing violation, id. § 12151(a)(1). In
addition, if a vessel owner “knowingly falsified or concealed a

1
Because we affirm the district court’s dismissal of the claims on these
grounds, we need not address Defendants’ alternative arguments for af-
firmance.
2
The following facts are taken from Relators’ amended complaint.

7

material fact, or knowingly made a false statement or representa-
tion, about the eligibility of the vessel under [the citizenship re-
quirement],” the owner is liable for a civil penalty of up to
$100,000 for each day the vessel engages in fishing. Id. § 12151(c).
The fishing of menhaden, a commercially valuable fish that is
processed for use in fish oil supplements, animal feed, and bait,
is the second largest fishery by tonnage in the United States. Prior
to 2017, Omega was a publicly traded U.S. company and the
“dominant player” in U.S. menhaden fishing, with a fleet that in-
cluded 37 vessels over 100 feet in registered length. App’x at 79.
In April 2017, Cooke, a private Canadian conglomerate, ap-
proached Omega with an acquisition offer. The amended com-
plaint alleges that, upon realizing during the negotiations that a
straightforward acquisition of Omega would render its vessels
ineligible to receive a fishery endorsement, Defendants struc-
tured the transaction to give “the illusion of independent owner-
ship, while ensuring that Cooke and Omega would retain total
control via a figurehead” and to conceal Defendants’ noncompli-
ance with the citizenship requirement. Id. at 101. More specifi-
cally, the amended complaint alleges that Omega’s vessels were
transferred to a new Omega subsidiary, which was then sold to a
holding company that was 20% owned by Omega and 80%
owned by a U.S. citizen and Cooke employee, Seth Dunlop,
whose uncle is Cooke’s Chief Executive Officer, Glenn Cooke.
The amended complaint further alleges that Defendants “de-
frauded the [g]overnment by falsely certifying that they complied
with the [citizenship requirement] and by concealing from
MARAD numerous facts that were material to MARAD’s citizen-
ship determinations under the [AFA].” Id. at 113. Finally, the
amended complaint alleges that Defendants’ knowing violation
of the citizenship requirement and fraudulent procurement of
fishery endorsements has defrauded the United States

8

government and resulted in the harvesting of “millions of dollars’
worth of [menhaden].” Id. at 82.
Relators initiated this qui tam action in July 2021. In March
2024, the government declined to intervene. In their amended
complaint, Plaintiffs assert four causes of action under the FCA,
alleging that: (1) Defendants presented false or fraudulent claims,
31 U.S.C. § 3729(a)(1)(A); (2) Defendants knowingly made, or
caused to be made, a false statement material to a false claim, id.
§ 3729(a)(1)(B); (3) Defendants conspired to submit, or caused to
be submitted, a false claim, id. § 3729(a)(1)(C); and (4) Defendants
knowingly made a false statement material to an obligation to
pay the government, or a “reverse false claim,” id. § 3729(a)(1)(G).
Defendants moved to dismiss the amended complaint and the
district court granted the motion. See generally United States v.
Cooke Inc., No. 21-CV-5743 (JMF), 2025 WL 27662 (S.D.N.Y. Jan. 3,
2025). As an initial matter, the district court noted that Relators’
first three causes of action “all require a showing that Defendants
made a request for ‘money or property’ within the meaning of the
[FCA].” Id. at *3. The district court then held that those three
causes of action failed because “neither the fishery endorsements
Defendants obtained for their fishing vessels nor the menhaden
fish Defendants were able to harvest from U.S. waters are ‘prop-
erty’ within the meaning of the FCA.” Id. at *7. Finally, the dis-
trict court concluded that Plaintiffs’ fourth cause of action, the re-
verse false claim, failed because the underlying statutory
penalties are discretionary, as opposed to mandatory. See id. at
*7–9. The district court also denied Relators’ request for leave to
amend to add a new cause of action under the FCA. See id. at *9.
This appeal followed.
DISCUSSION
“We review de novo a district court’s dismissal for failure to

9

state a claim under Federal Rule of Civil Procedure 12(b)(6), ac-
cepting as true all factual allegations in the complaint and draw-
ing all reasonable inferences in favor of the plaintiff.” Carruthers
v. Colton, 153 F.4th 169, 179 (2d Cir. 2025) (internal quotation marks
and citation omitted). Similarly, we review de novo the district
court’s statutory interpretation that underlies its order of dismis-
sal. See Romea v. Heiberger & Assocs., 163 F.3d 111, 114 (2d Cir. 1998).
“To survive a motion to dismiss, a complaint must contain suffi-
cient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted). A claim is plau-
sible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
“The FCA imposes significant penalties on those who defraud
the [g]overnment.” Miller v. United States ex rel. Miller, 110 F.4th
533, 541 (2d Cir. 2024) (internal quotation marks and citation omit-
ted). “The FCA, however, is ‘not an all-purpose antifraud statute,
or a vehicle for punishing garden-variety breaches of contract or
regulatory violations.’” United States ex rel. Billington v. HCL
Techs. Ltd., 126 F.4th 799, 803 (2d Cir. 2025) (quoting Universal
Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 194
(2016)). As relevant here, the statute imposes liability on any per-
son who “knowingly presents, or causes to be presented, a false
or fraudulent claim for payment or approval,” 31 U.S.C.
§ 3729(a)(1)(A), or “knowingly makes, uses, or causes to be made
or used, a false record or statement material to a false or fraudu-
lent claim,” id. § 3729(a)(1)(B). To establish a claim under either
subsection, a relator must show that the defendant: “(1) made a
claim, (2) to the United States government, (3) that is false or
fraudulent, (4) knowing of its falsity, and (5) seeking payment
from the federal treasury.” Mikes v. Straus, 274 F.3d 687, 695 (2d

10

Cir. 2001), abrogated on other grounds by Universal Health Servs., 579
U.S. 176. The term “claim” is defined by statute as “any request
or demand, whether under a contract or otherwise, for money or
property and whether or not the United States has title to the
money or property, that—is presented to an officer, employee, or
agent of the United States.” 31 U.S.C. § 3729(b)(2)(A)(i). The
FCA’s reverse false claim provision imposes liability on any per-
son who “knowingly conceals or knowingly and improperly
avoids or decreases an obligation to pay or transmit money or
property to the [g]overnment.” Id. § 3729(a)(1)(G). The statute
also imposes liability where a defendant “conspires to commit” a
violation of these provisions. Id. § 3729(a)(1)(C).
Relators assert that the district court erred in dismissing their
property-based claims under Section 3729(a)(1)(A)–(C), as well as
the reverse false claim under Section 3729(a)(1)(G). Alternatively,
Relators contend that the district court abused its discretion in
denying the request for leave to amend. We address each argu-
ment in turn.
I. Property-Based Claims Under the FCA
A false claim under the FCA “normally connotes a demand for
money or for some transfer of public property.” United States v.
McNinch, 356 U.S. 595, 599 (1958) (internal quotation marks and
citation omitted). Here, the amended complaint alleges that the
property at issue is wild fish. See App’x at 78 (“As a result of their
fraudulent scheme, Defendants have illegally harvested from
United States waters many millions of dollars’ worth of fish to
which they are not entitled.”). On appeal, Relators argue that the
district court erred in dismissing their property-based claims un-
der the FCA on the ground that the wild fish at issue are not

11

“property” under the statute.
3
Assuming without deciding that
the defendants’ application for a fishing endorsement is tanta-
mount to a claim for the fish they would catch pursuant to that
license, we disagree that the wild fish are “property” under the
statute.
Because the FCA does not define property, we look to “tradi-
tional concepts of property” law to determine whether an interest
is sufficient to constitute property under the FCA. Cleveland v.
United States, 531 U.S. 12, 24 (2000); see also United States v. Henry,
29 F.3d 112, 115 (3d Cir. 1994) (“[T]o determine whether a particu-
lar interest is property for purposes of the fraud statutes, we look
to whether the law traditionally has recognized and enforced it
as a property right.”). As set forth below, the district court cor-
rectly determined, based upon well-settled Supreme Court prec-
edent, that free-swimming wild fish and game are not the prop-
erty of the state or federal government under traditional concepts
of property law and, thus, wild fish cannot constitute “property”
for purposes of an FCA claim.
As Relators note, in the late nineteenth century, the Supreme
Court did suggest that a state has ownership in wildlife. In par-
ticular, in Geer v. Connecticut, 161 U.S. 519 (1896), the Supreme
Court surveyed the history of property rights in wildlife, from the
Institutes of Justinian to Blackstone, and concluded that wild fish
and game within a state’s territory are the common property of
its citizens and that the state acts as a trustee for that common
property. Id. at 529 (“While the fundamental principles upon
which the common property in game rest have undergone no
change, the development of free institutions had led to the

3
Relators do not challenge on appeal the district court’s separate determi-
nation that the fishery endorsements also do not qualify as property un-
der the FCA.

12

recognition of the fact that the power or control lodged in the
state, resulting from this common ownership, is to be exercised,
like all other powers of government, as a trust for the benefit of
the people, and not as a prerogative for the advantage of the gov-
ernment as distinct from the people, or for the benefit of private
individuals as distinguished from the public good.”).
In dissent, Justice Field agreed that the state had authority to
regulate wild fish and game. See id. at 541 (“I do not doubt the
right of the state, by its legislation, to provide for the protection
of wild game, so far as such protection is necessary for their
preservation, or for the comfort, health, or security of its citizens,
and does not contravene the power of congress in the regulation
of interstate commerce.”). But he did not ground that authority
in state ownership of wild fish and game; rather, he concluded that
nobody has a proprietary interest in wild fish and game until it is
caught:
I hold that where animals within a state, whether living
in its waters or in the air above, are, at the time, beyond
the reach or control of man, so that they cannot be sub-
jected to his use or that of the state in any respect, they
are not the property of the state or of any one in a proper
sense. I hold that, until they are brought into subjection
or use by the labor or skill of man, they are not the prop-
erty of any one, and that they only become the property
of man according to the extent to which they are sub-
jected by his labor or skill to his use and benefit.
Id. at 539.
Within several decades, the Supreme Court began its retreat
from the view that wild fish or game are the property of the state,
as suggested in the majority holding in Geer, and moved towards
Justice Field’s dissent, which classified such fish and game as
property of no one. For example, in Missouri v. Holland, 252 U.S.
416 (1920), the Supreme Court held that the 1916 treaty between

13

the United States and Great Britain, which regulated the killing
and sale of migratory birds, was a proper exercise of the federal
government’s treaty power under the Constitution. Id. at 431–35.
In doing so, the Supreme Court rejected Missouri’s argument that
the treaty was invalid because the state had ownership of such
birds or possessed exclusive power to regulate their killing:
No doubt it is true that as between a State and its inhab-
itants the State may regulate the killing and sale of such
birds, but it does not follow that its authority is exclusive
of paramount powers. To put the claim of the State upon
title is to lean upon a slender reed. Wild birds are not in
the possession of anyone; and possession is the begin-
ning of ownership. The whole foundation of the State’s
rights is the presence within their jurisdiction of birds
that yesterday had not arrived, tomorrow may be in an-
other State and in a week a thousand miles away.
Id. at 434. Similarly, in Toomer v. Witsell, 334 U.S. 385 (1948), the
Supreme Court again rejected the contention that a state owns the
wild fish within its waters, explaining that “[t]he whole owner-
ship theory, in fact, is now generally regarded as but a fiction ex-
pressive in legal shorthand of the importance to its people that a
State have power to preserve and regulate the exploitation of an
important resource.” Id. at 402.
The Supreme Court reiterated this legal principle again in
Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977), which held
that a Virginia statute that limited the ability of “nonresidents or
aliens” to catch a certain fish, namely, menhaden, in its territorial
waters was preempted by federal law. Id. at 286. In reaching that
determination, the Court adopted the reasoning of Justice Field’s
dissent in Geer, explaining:
A State does not stand in the same position as the owner
of a private game preserve[,] and it is pure fantasy to talk
of “owning” wild fish, birds, or animals. Neither the

14

States nor the Federal Government, any more than a
hopeful fisherman or hunter, has title to these creatures
until they are reduced to possession by skillful capture.
. . . The “ownership” language of cases such as those
cited by appellant must be understood as no more than a
19th-century legal fiction expressing “the importance to
its people that a State have power to preserve and regu-
late the exploitation of an important resource.”
Id. at 284 (citing Holland, 252 U.S. 416, and Geer, 161 U.S. at 539–40
(Field, J., dissenting), and quoting Toomer, 334 U.S. at 402); accord
Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 386 (1978).
Any conceivable doubt as to the continuing vitality of the
“ownership” language of Geer was eliminated in Hughes v. Okla-
homa, 441 U.S. 322 (1979), which noted that “[t]he Geer analysis
has . . . been eroded to the point of virtual extinction in cases in-
volving regulation of wild animals” and, after tracing that ero-
sion, “expressly overrule[d] Geer.” Id. at 331–35. In doing so, the
Court relied upon the above-referenced quotation from Douglas,
which it noted “explicitly embraced the analysis of the Geer dis-
senters.”
4
Id. at 334.

4
Although Relators seek to rely upon the Supreme Court’s more recent
decision in Horne v. Department of Agriculture, 576 U.S. 350 (2015), to sup-
port their position, such reliance is misplaced. In Horne, growers of rai-
sins challenged a requirement by the federal government that they set
aside a certain percentage of their yearly crop for a government reserve
account, free of charge. Id. at 355. In an effort to combat the growers’
argument that this reserve requirement constituted an unlawful taking
under the Fifth Amendment, the government countered that the require-
ment was a permissible condition on raisin growing, rather than a taking,
and relied upon Leonard & Leonard v. Earle, 279 U.S. 392 (1929), which up-
held a Maryland law requiring oyster packers to obtain a license and re-
turn at least 10% of the used shells to the state. Horne, 576 U.S. at 365–67.
In holding that the reserve requirement for raisins constituted an unlaw-
ful taking, Horne distinguished Leonard by explaining that privately

15

This Court has likewise recognized this well-settled principle
of law regarding the lack of property rights in wildlife. More spe-
cifically, in United States v. Long Cove Seafood, Inc., 582 F.2d 159 (2d
Cir. 1978), we explained—citing, inter alia, Douglas, Holland, and
Justice Field’s dissent in Geer—that, “[a]s a general rule, wild fish,
birds and animals are owned by no one” and “[p]roperty rights
in them are obtained by reducing them to possession.” Id. at 163–
64. Other circuits have similarly acknowledged that the govern-
ment’s proprietary ownership of wildlife is a fiction. See Utah Na-
tive Plant Soc’y v. U.S. Forest Serv., 923 F.3d 860, 870–71 (10th Cir.
2019); Colvin Cattle Co. v. United States, 468 F.3d 803, 809 (Fed. Cir.
2006); Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 671 (1st Cir.
1980); Reeves, Inc. v. Kelley, 603 F.2d 736, 737–38 (8th Cir. 1979).
5

grown raisins were “the fruit of the growers’ labor,” while “the oysters,
unlike raisins, were ‘feræ naturæ’ that belonged to the [s]tate under state
law.” Id. at 367. Although the Supreme Court did use the language of
ownership to distinguish Leonard, we again view such language as a
shorthand reference (as in earlier Supreme Court cases) to a state’s power
to regulate the taking and control of wild animals, rather than as estab-
lishing the existence of a property right. See also id. (“Raisins are not like
oysters: they are private property—the fruit of the growers’ labor—not
public things subject to the absolute control of the state.”) (internal quo-
tation marks and citation omitted). We therefore reject Relators’ sugges-
tion that this language in Horne somehow implicitly overruled the Court’s
analysis regarding the lack of any ownership rights in wild fish or game,
as repeatedly articulated in cases such as Holland, Toomer, Baldwin, Doug-
las, and Hughes.
5
In support of their position that Geer is still good law, Relators rely on the
Tenth Circuit’s decision in Mountain States Legal Foundation v. Hodel, 799
F.2d 1423 (10th Cir. 1986) (en banc). Although the Hodel court noted that
it read Hughes as overruling only “the narrow holding of Geer by rejecting
the view that a state, without violating the Commerce Clause of the Con-
stitution, may prohibit the export of wildlife lawfully taken within the
state,” id. at 1426 n.5, it did not endorse the view that Geer supported the

16

Accordingly, based upon the Supreme Court’s precedent re-
garding the lack of property rights in wild fish and game, which
was confirmed by our decision in Long Cove, we hold that no one
owns or has a property interest in wild fish within state or federal
waters and, thus, the wild menhaden fish harvested in U.S. wa-
ters by Defendants are not “property” within the meaning of the
FCA. In reaching this decision, we emphasize that, although fed-
eral and state governments do not have a proprietary interest in

existence of a property right in wildlife by the state. To be sure, it cited
Geer for the proposition that “[i]t is well settled that wild animals are not
the private property of those whose land they occupy, but are instead a
sort of common property whose control and regulation are to be exercised
‘as a trust for the benefit of the people.’” Id. at 1426 (quoting Geer, 161 U.S.
at 528–29). However, the Tenth Circuit then emphasized:
Neither state nor federal authority over wildlife is premised upon
any technical “ownership” of
wildlife by the government. Alt-
hough older decisions sometimes referred to government
“ownership” of wildlife, that language has been deemed “a
fiction expressive in legal shorthand of the importance to its
people that a State have power to preserve and regulate the
exploitation of an important resource.” [Toomer, 334 U.S. at
402 ]. As the Supreme Court declared, “[I]t is pure fantasy to
talk of ‘owning’ wild fish, birds, or animals. Neither the States
nor the Federal Government
. . . has title to these creatures until
they are reduced to possession by skillful capture.” [Douglas, 431
U.S. at 284 (citing Holland, 252 U.S. at 434); Geer, 161 U.S. at 539–40
(Field, J., dissenting)].
Id. at 1426–27. Thus, Hodel provides no support for Relators’ claim that a
state has a property right in wildlife. Indeed, the Tenth Circuit again re-
jected that contention in Utah Native Plant Society, in which it quoted the
above-referenced language from Hodel and held that, “[b]ecause wild an-
imals are not the private property of those whose lands they occupy, the
State of Utah, at least once it released the goats back into the wild, did not
own the goats. . . .” 923 F.3d at 870–71.

17

wild fish and game, they retain broad powers to regulate the tak-
ing of such wild fish and game. Those regulatory powers have
been long recognized by the Supreme Court, and our holding to-
day does nothing to disturb those powers. See, e.g., Hughes, 441
U.S. at 338 (stating that “[t]he overruling of Geer does not leave
the States powerless to protect and conserve wild animal life
within their borders”); Toomer, 334 U.S. at 402 (describing “[t]he
whole ownership theory . . . as but a fiction expressive in legal
shorthand of the importance to its people that a State have power
to preserve and regulate the exploitation of an important re-
source”).
Instead, consistent with Supreme Court precedent, we con-
clude that this power to regulate wild fish and game is not based
on ownership and does not create a property right in them and
thus cannot be the subject of a cause of action for fraud in connec-
tion with a claim for property under the FCA. Although Relators
attempt to distinguish this clear precedent on several grounds,
we find each of those arguments unpersuasive and address each
one in turn.
First, Relators argue that “the plain language of the Sub-
merged Lands Act [“SLA”] confirms that States have ‘title to and
ownership of’ ‘fish’ within State waters.” Appellants’ Br. at 15
(quoting 43 U.S.C. §§ 1311(a)(1), 1301(e)). The SLA, which was en-
acted in 1953, states:
It is determined and declared to be in the public interest
that (1) title to and ownership of the lands beneath navi-
gable waters within the boundaries of the respective
States, and the natural resources within such lands and
waters, and (2) the right and power to manage, adminis-
ter, lease, develop, and use the said lands and natural re-
sources all in accordance with applicable State law be,
and they are, subject to the provisions hereof, recognized,
confirmed, established, and vested in and assigned to the

18

respective States.
43 U.S.C. § 1311(a). The statute defines “natural resources” to in-
clude, “without limiting the generality thereof, . . . fish, shrimp,
oysters, clams, crabs, lobsters, sponges, kelp, and other marine
animal and plant life.” Id. § 1301(e).
According to Relators, the SLA’s first clause vests property
rights in states over, inter alia, wild fish, whereas the second
clause confirms the states’ regulatory power over the same. We
disagree. Relators’ reliance on the SLA is misplaced. Although
the Act confirms state title to submerged lands, its inclusion of
fish within the definition of “natural resources” does not establish
that states possess a proprietary interest in free-swimming wild
fish.
The purpose of the SLA was to override the Supreme Court’s
decision in United States v. California, 332 U.S. 19 (1947). See H.R.
R
EP. No. 82-695, at 5 (1951) (“Title II merely fixes as the law of the
land that which, throughout our history prior to the Supreme
Court decision in the California case in 1947, was generally be-
lieved and accepted to be the law of the land; namely that the re-
spective States are the sovereign owners of the land beneath nav-
igable waters within their boundaries and of the natural
resources within such lands and waters.”). In that decision, the
Supreme Court had held that the federal government, and not the
states, has the “paramount rights in and power over” the three-
mile ocean belt contiguous to a state’s shoreline. California, 332
U.S. at 38. Nothing in the SLA suggests that it was intended to
override the principle that free swimming fish in the wild are not
property.
Perhaps the best evidence that the SLA did not alter Supreme
Court precedent as to free-swimming fish is that many of the
cases determining that state ownership of wildlife is a “fiction”—

19

including Douglas, Baldwin, and Hughes—were decided after the
SLA was enacted in 1953. See Douglas, 431 U.S. at 284; Baldwin, 436
U.S. at 386; Hughes, 441 U.S. at 334–35. Indeed, in Douglas, the
Supreme Court had occasion to squarely address the argument
that “the Submerged Lands Act . . . and a number of [the] Court’s
decisions recognize that the States have a title or ownership inter-
est in the fish swimming in their territorial waters,” and thus, “the
States ‘own’ the fish.” 431 U.S. at 283 (internal citation and foot-
note omitted). The Court was clear that “[this] contention is of no
avail,” reiterating that, as a matter of property right, “it is pure
fantasy to talk of ‘owning’ wild fish, birds, or animals.” Id. at 28 3–
84. Although Relators contend that the rejection of the state-own-
ership theory in Douglas was limited to the Court’s prior case au-
thority and did not include the SLA, that narrow reading of its
analysis is unwarranted as its discussion regarding ownership of
wild animals was made in direct response to the contention that
the SLA vested in states ownership of fish swimming in their ter-
ritorial waters. Id.
This reading of the Court’s opinion is confirmed by Justice
Rehnquist’s partial concurrence, which disagreed with certain
reasoning in the majority opinion, but indicated his agreement
with the majority opinion that “the States do not ‘own’ free-
swimming creatures within their territorial limits in any conven-
tional sense of that term.” Id. at 287 (Rehnquist, J., concurring in
part) (citation omitted). More specifically, he emphasized that the
“convey[ance of] ‘title’ and ‘ownership’ to such land and re-
sources” in Section 1311(a)(1) of the SLA “could not reasonably re-
fer to free-swimming fish which are incapable of such owner-
ship.” Id. at 290.
In Long Cove, we reached the same conclusion in interpreting
the analogous language contained in a New York statute that pro-
vided that the “State of New York owns all fish, game, wildlife,

20

shellfish, crustacea and protected insects in the state, except those
legally acquired and held in private ownership.” 582 F.2d at 164
(quoting N.Y. Env’t Conserv. Law § 11-0105). The question pre-
sented was whether we should interpret this statute literally to
mean that “New York has asserted a true ownership interest in
wildlife”—we concluded, “We think not.” Id. at 165. We further
explained that we viewed the language of the New York statute
not as a claim of “a right of possession of wildlife,” but rather as
a claim “solely ‘for the purpose of regulating and controlling their
use and disposition.’”
6
Id. (quoting N.Y. Env’t Conserv. Law
§ 11-0105). Thus, our interpretation of this New York statute in
Long Cove regarding the lack of a “true ownership” right in wild-
life further supports our reading of the similar language con-
tained in the SLA.
In short, we conclude that nothing in the SLA alters the Su-
preme Court’s direction that nobody has a proprietary ownership
interest in free-swimming fish or otherwise supports Relators’ at-
tempt to classify wild fish as property under the FCA.
7

6
To be sure, in Long Cove, we noted that, “[u]nlike most wild ani-
mals, . . . clams, mussels and other sedentary or burrowing mollusks do
not roam to any significant degree,” and, “[h]ence, they are deemed to be
in the possession of the owner, if any, of the land in which they are
found.” 582 F.2d at 164. However, that conclusion regarding the seden-
tary wild clams at issue in Long Cove has no application to the wild fish at
issue here.
7
Relators’ cursory reliance on the Magnuson-Stevens Fishery Conserva-
tion and Management Act (the “Magnuson-Stevens Act”) is similarly un-
availing. Congress enacted the Magnuson-Stevens Act in 1976 as part of
“[a] national program for the conservation and management of the fishery
resources of the United States.” 16 U.S.C. § 1801(a)(6) (1976). The statute
provides, in relevant part, that “the United States claims, and will exercise
in the manner provided for in this chapter, sovereign rights and exclusive
fishery management authority over all fish . . . within the exclusive

21

Second, Relators argue that the Supreme Court’s holdings that
a state has no property right in wildlife can be distinguished be-
cause in those cases the Court was narrowly deciding federalism
questions regarding whether a state’s claim of ownership in wild-
life could immunize it from federal regulation. We disagree. Alt-
hough federalism issues were raised in various Supreme Court
cases addressing this ownership of wildlife issue, the Court’s
analysis has not been limited to assessing a state’s claim of prop-
erty right against the federal government. Instead, as we recog-
nized in Long Cove, the Supreme Court has made clear for over
one century that, “[a]s a general rule, wild fish, birds and animals
are owned by no one.” 582 F.2d at 163 (emphasis added); see also
Douglas, 431 U.S. at 284 (“Neither the States nor the Federal Govern-
ment, any more than a hopeful fisherman or hunter, has title to
these creatures until they are reduced to possession by skillful
capture.”) (emphasis added); Hughes, 441 U.S. at 334 (quoting
Douglas with approval); Holland, 252 U.S. at 434 (“Wild birds are
not in the possession of anyone; and possession is the beginning of
ownership.”) (emphasis added).
To the extent Relators also contend that we should disregard
any of the above-referenced language from the Supreme Court
cases as “obvious dicta,” Appellants’ Reply Br. at 2, we disagree.
As a threshold matter, we are unpersuaded that the Supreme
Court’s analysis in each of these cases can be classified as dicta.
Even in cases where federalism issues were being raised, the Su-
preme Court’s determination that no one owns wildlife was nec-
essary to support its holdings that a state could not claim such
ownership and, thus, was not dicta. See Seminole Tribe of Fla. v.

economic zone.” Id. § 1811(a). That statutory language confers no owner-
ship or property rights in the wild fish but rather confers federal authority
to manage and regulate the fish in federal waters.

22

Florida, 517 U.S. 44, 67 (1996) (“When an opinion issues for the
Court, it is not only the result but also those portions of the opin-
ion necessary to that result by which we are bound.”). In any
event, it is well settled that “we are obligated to accord great def-
erence to Supreme Court dicta, absent a change in the legal land-
scape.” United States v. Harris, 838 F.3d 98, 107 (2d Cir. 2016) (in-
ternal quotation marks and citation omitted); see also Clemente v.
Lee, 72 F.4th 466, 474 (2d Cir. 2023). Here, there has been no
change to the legal landscape on this issue subsequent to these
Supreme Court decisions and, therefore, we afford great defer-
ence to that analysis across numerous cases, even if it constitutes
dicta.
Finally, we reject Relators’ contention that “[t]he [g]overn-
ment’s [i]nterest, [e]ven if [l]ess than [o]wnership, [i]s [s]till a
[p]roperty [i]nterest” that implicates the FCA. Appellants’ Br. at
42. In particular, Relators suggest that, because a state has the
right to exclude, possess, and use with respect to fish in public
waters, that “States’ interest in fish . . . bears the hallmarks of all
the sticks in the bundle of property rights.” Id. at 45. The “bundle
of sticks” metaphor is “[a] common idiom” used to describe prop-
erty. United States v. Craft, 535 U.S. 274, 278 (2002). “But that met-
aphor—whatever its merits in other contexts—cannot compen-
sate for the absence of an interest that itself has long been
recognized as property.” Ciminelli v. United States, 598 U.S. 306,
314 n.4 (2023) (internal quotation marks and citation omitted).
Here, the interest that the government retains in wild fish and
game is exercised through its regulatory power, and not by virtue
of the government’s ownership of them, and that interest (though
broad and important) does not transform the regulatory power
into a property right. Relators cite no caselaw for the proposition
that the FCA reaches claims for things in which the government
retains some sort of bundle of interests or that are simply subject

23

to governmental regulation. Cf. United States v. Evans, 844 F.2d
36, 42 (2d Cir. 1988) (“A law prohibiting a particular use of a com-
modity that the government does not use or possess ordinarily
does not create a property right. If it did, many government reg-
ulations would create property rights.”). Thus, notwithstanding
the government’s broad regulatory authority over wild fish, the
lack of any property interest by the government in the fish is fatal
to any attempt to assert an FCA cause of action based on an al-
leged false claim submitted to the United States regarding those
fish. Accordingly, because the federal and state governments do
not have a property interest in wild fish, the district court cor-
rectly concluded that the amended complaint failed to state a
claim under Sections 3729(a)(1)(A), (B), and (C) of the FCA.
II. Reverse FCA Claim
Relators also argue that the district court erred in dismissing
their reverse false claim under the FCA. Here, the theory regard-
ing the reverse false claim is that the false certifications submitted
by Defendants to MARAD and the Coast Guard “covered up il-
legal fishing conducted the prior year” and, “[i]n doing so, De-
fendants ‘conceal[ed]’ or ‘avoid[ed]’ or ‘decrease[d] an obliga-
tion’ to pay mandatory statutory penalties under the AFA for
their illegal fishing and fraudulent statements.” Appellants’ Br.
at 45–46 (alterations in original). As set forth below, we agree
with the district court’s conclusion that the allegations in the
amended complaint fail to state a reverse false claim.
The FCA imposes liability on any person who makes a “re-
verse false claim,” which “covers claims of money owed to the
government, rather than payments made by the government.”
United States ex rel. Foreman v. AECOM, 19 F.4th 85, 119 (2d Cir.
2021) (emphasis omitted); see also 31 U.S.C. § 3729(a)(1)(G), (b)(3).
“Under any theory of a reverse false claim, . . . the relator must

24

allege an ‘obligation’ to pay money or property to the govern-
ment.” Miller, 110 F.4th at 542. An “obligation” is defined as “an
established duty, whether or not fixed, arising from” enumerated
sources, including a contractual relationship, statute, or regula-
tion. 31 U.S.C. § 3729(b)(3). “[A] duty to pay is established only
when it triggers an immediate and self-executing duty to pay.”
Billington, 126 F.4th at 804 (emphasis, internal quotation marks
and citation omitted). “In other words, . . . potential or contingent
exposure to penalties does not create an ‘established’ duty to pay
and, accordingly, an obligation does not exist by the mere fact of
a violation.” Miller, 110 F.4th at 545.
The district court held that, because the AFA’s civil penalties
are discretionary, Relators failed to state a reverse false claim.
Cooke, 2025 WL 27662, at *7–9. On appeal, Relators assert that the
AFA’s civil penalties for violating the citizenship requirement are
mandatory. In particular, Relators point to two statutory provi-
sions: the first provides that “a person that violates [a provision
of the AFA or a regulation promulgated thereunder] is liable to
the United States [g]overnment for a civil penalty,” 46 U.S.C.
§ 12151(a)(1) (emphasis added); and the second provides that “the
owner of a documented vessel for which a fishery endorsement
has been issued is liable to the [g] overnment for a civil penalty . . .
if [they or their agent] knowingly falsified or concealed a material
fact, or knowingly made a false statement or representation,
about the eligibility of the vessel under [the citizenship require-
ment],” id. § 12151(c) (emphasis added).
Determining whether a penalty is self-executing and manda-
tory under the FCA requires examining the statutory language
and the broader context of the statute as a whole. See Miller, 110
F.4th at 546. “Liable” is defined, in relevant part, as “[r]esponsi-
ble or answerable in law; legally obligated,” or “[s]ubject to or
likely to incur a fine, penalty, etc.” Liable, B
LACK’S LAW

25

D
ICTIONARY (12th ed. 2024). Relators assert that this ends the mat-
ter. However, it does not suffice to say that “is liable” means “ob-
ligation”—this tautology provides no insight. The question is
whether “is liable” under the AFA constitutes an “established
duty,” which, for purposes of the FCA, means an “immediate and
self-executing duty to pay.” Miller, 110 F.4th at 545 (emphasis
added). We conclude that it does not.
First, the statute does not on its face establish a self-executing
obligation. The only other statutory provision concerning penal-
ties in the AFA provides that, “[i]f the owner of a vessel fails to
pay a civil penalty imposed by the Secretary [of Transportation],
the Secretary may . . . deny . . . or revoke” the issuance of a fishery
endorsement for the vessel in question. 46 U.S.C. § 12152 (empha-
sis added). That the Secretary of Transportation imposes a civil
penalty suggests that the Secretary and/or MARAD must take af-
firmative steps to communicate, confirm, and collect the penal-
ties, indicating that they are neither self-executing nor immedi-
ate.
Second, the statutory context indicates that the penalties are
discretionary, not mandatory. For example, the AFA provides
that MARAD “may conduct investigations and inspections re-
garding compliance.” Id. § 12140(a). Moreover, the relevant
MARAD regulation notes that certain penalties “may apply” if an
entity violates the citizenship requirement. See 46 C.F.R. § 356.49.
We have previously noted that “[t]he repeated use of the term
‘may’ implies discretion” and undercuts the argument that the
available penalties are mandatory. See Miller, 110 F.4th at 547 (cit-
ing Me. Cmty. Health Options v. United States, 590 U.S. 296, 310)
(2020). Indeed, as the district court noted, the allegations of the
amended complaint confirm the discretionary nature of the po-
tential penalties under the AFA. See App’x at 97 (“The National
Vessel Documentation Center (‘NVDC’), a unit within the Coast

26

Guard, is one of the federal bodies that investigates vessel citizen-
ship requirement violations and recommends appropriate penal-
ties. . . . In February 2012, the Coast Guard approved commence-
ment of a civil penalty assessment process against Trico to collect
penalties under 46 U.S.C. § 12151(a). MARAD concurred in the
Coast Guard’s findings of fact.”) (emphasis added).
In short, it is abundantly clear from the statutory framework
that the civil penalty for violating the AFA is not self-executing,
and it is in the discretion of MARAD as to whether to impose a
civil penalty for any violations of the AFA and, thus, this unas-
sessed civil penalty cannot constitute an “obligation to pay” for
purposes of a reverse false claim under the FCA. See also United
States ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 196 F.
Supp. 3d 436, 447 (D. Del. 2016) (“[L]iability under [Section 12151
of the AFA] is contingent on the government’s discretion to im-
pose fines on defendants, as evidenced by the statutory language.
As such, these potential obligations to pay unassessed fines are
not within the scope of the FCA.”).
Our holding is consistent with our recent decision in Miller, in
which we held that a relator failed to sufficiently allege a reverse
false claim based on civil penalties allegedly avoided by the de-
fendant. More specifically, the relator argued that “she suffi-
ciently alleged that [the defendant] had an obligation, or estab-
lished duty, to pay because [the defendant’s] conduct violated the
2015 Consent Orders, triggering ‘mandatory payment provisions’
or ‘immediate liability’ under the FDIA [(Federal Deposit Insur-
ance Act)].” 110 F.4th at 546. The statute at issue provided that a
bank that violates a final order “shall forfeit and pay a civil pen-
alty.” 12 U.S.C. § 1818(i)(2)(A)–(C). Notwithstanding the “shall”
language, we rejected the relator’s argument that the potential
fine for violation of the FDIA constituted an “obligation to pay”
under the FCA. Miller, 110 F. 4th at 544–47. In doing so, we

27

explained that we agree with “our sister circuits [who] have con-
cluded that potential or contingent exposure to penalties does not
create an ‘established’ duty to pay and, accordingly, an obligation
does not exist by the mere fact of a violation.” Id. at 545 & n.5
(collecting cases); see, e.g., United States ex rel. Kasowitz Benson
Torres LLP v. BASF Corp., 929 F.3d 721, 725 (D.C. Cir. 2019) (“[A]n
unassessed potential penalty for regulatory noncompliance does
not constitute an obligation that gives rise to a viable FCA
claim.”) (alteration in original); United States ex rel. Simoneaux v.
E.I. duPont de Nemours & Co., 843 F.3d 1033, 1039 (5th Cir. 2016)
(holding, in the context of a reverse false claim, that
“[w]here . . . a regulatory penalty has not been assessed and the
government has initiated no proceeding to assess it, there is no
established duty to pay”). We then determined that, “[w]hile the
FDIA’s ‘shall forfeit and pay’ language, by itself, could arguably
be read to require immediate and mandatory penalties, . . . the
statutory context makes clear that these penalties are not manda-
tory, but discretionary.” Miller, 110 F.4th at 546. In other words,
“the [relevant agency] has the discretion not to impose a penalty
that the FDIA states a bank ‘shall forfeit and pay’” and, “accord-
ingly, [that language] do[es] not trigger mandatory payment pro-
visions or immediate liability under the FDIA.” Id. at 547 (em-
phasis in original) (internal quotation marks and citation
omitted).
Here, as in Miller, Relators put the cart before the horse, as any
obligation by Defendants to pay a penalty for any violations of
the AFA has not yet materialized. The Secretary of Transporta-
tion retains the discretion to determine whether to impose a civil
penalty for any violation, and “an obligation does not exist by the
mere fact of a violation.” Id. at 545; see also Simoneaux, 843 F.3d at
1040 (emphasizing that “most regulatory statutes . . . impose only
a duty to obey the law, and the duty to pay regulatory penalties

28

is not ‘established’ until the penalties are assessed”) (emphasis in
original).
Relators’ arguments to the contrary are unavailing. They sug-
gest that the question of whether penalties are mandatory or dis-
cretionary can be answered only by reference to the relevant stat-
ute and that related regulations are of no moment. However, that
takes our holding in Miller too far; nowhere did we suggest that
related regulations are irrelevant to determining whether penal-
ties are mandatory or discretionary. Rather, courts may consider
related regulations in the course of exercising their independent
judgment in interpreting a statute. See Loper Bright Enters. v. Rai-
mondo, 603 U.S. 369, 412–13 (2024). In any event, our determina-
tion would be the same based upon the statutory language, even
without consideration of the regulations.
Relators’ reference to United States v. Monsanto, 491 U.S. 600
(1989), also misses the mark. In Monsanto, the Supreme Court
held that a statute providing that a person convicted of certain
offenses “shall forfeit . . . any property” and that the sentencing
court “shall order” forfeiture clearly set forth mandatory penal-
ties. Id. at 607. The Supreme Court noted that “Congress could
not have chosen stronger words to express its intent that forfei-
ture be mandatory in cases where the statute applied.” Id. The
discretionary language in the AFA is a far cry from the strong ver-
biage in the statute at issue in Monsanto. And regardless of
whether the penalties under the AFA are mandatory, no self-exe-
cuting obligation to pay those penalties arises automatically upon
committing a violation.
Accordingly, because the potential civil penalties for viola-
tions under the AFA do not constitute an “obligation to pay” un-
der the FCA, 31 U.S.C. § 3729(a)(1)(G), the district court correctly
held that Relators had failed to state a reverse false claim.

29

III. Leave to Amend
Finally, Relators challenge the district court’s denial of their
request to further amend their complaint.
“We generally review a district court’s decision to permit or
deny leave to amend a complaint for abuse of discretion, keeping
in mind that leave to amend should be freely granted when jus-
tice so requires.” Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d
Cir. 2015) (internal quotation marks and citation omitted). “How-
ever, when denial of leave to file a revised pleading is based on a
legal interpretation, such as futility, a reviewing court conducts a
de novo review.” Id. A request to amend is futile if “proposed
amendments would fail to cure prior deficiencies or to state a
claim under Rule 12(b)(6).” Pyskaty v. Wide World of Cars, LLC, 856
F.3d 216, 225 (2d Cir. 2017) (internal quotation marks and citation
omitted).
In their opposition to Defendants’ motions to dismiss, Relators
requested leave to amend to add a conversion claim under 31
U.S.C. § 3729(a)(1)(D), in light of our decision in Miller. Section
3729(a)(1)(D) imposes liability on any person who “has posses-
sion, custody, or control of property or money used, or to be used,
by the [g]overnment and knowingly delivers, or causes to be de-
livered, less than all of that money or property.” 31 U.S.C.
§ 3729(a)(1)(D). The statute does not define “use.” See id.
§ 3729(b). Relators sought to add this new conversion claim un-
der Section 3729(a)(1)(D) based upon the theory that Defendants
failed to deliver unlawfully harvested fish to the government, and
Relators relied upon United States v. Bengis, 631 F.3d 33, 38–40 (2d
Cir. 2011), which they contend supports the proposition that “ille-
gally caught fish are immediately treated as government prop-
erty the moment they are caught because they are subject to sei-
zure and sale by the government.” Appellants’ Br. at 51.

30

The district court denied Relators’ request, finding that they
did “not explain how or why the Second Circuit’s decision in Mil-
ler—which construed only the FCA’s reverse false claims provi-
sion—suggests that they should be permitted to bring a new
claim under an entirely different provision.” Cooke, 2025 WL
27662, at *9. The district court further noted that it had already
granted Relators leave to amend in response to Defendants’ ini-
tial motions to dismiss and warned that there would be no further
opportunities to amend. Id.
We conclude that the district court did not abuse its discretion
in denying Relators’ request for leave to amend because of the
undue delay in asserting it.
8
Although Relators suggest this
Court’s decision in Miller effected a change in the law that re-
quired the district court to grant leave to amend, we disagree.
Miller makes no mention whatsoever of Section 3729(a)(1)(D), and
we agree with the district court that Relators failed to adequately
explain below why Miller should permit them “to bring a new
claim under an entirely different provision.” Id. On appeal, Re-
lators now explain that, prior to Miller, they “believed in good
faith that the Bengis doctrine would state a claim under [Section]
3729(a)(1)(G),” i.e., a reverse false claim, but that Miller’s clarifica-
tion of “the meaning of ‘established’” as it relates to reverse false
claims has led Plaintiffs to believe “that a claim under Bengis
would be a better fit under [Section] 3729(a)(1)(D).”
9
Appellants’

8
The district court alternatively denied Relators’ request for leave to
amend based on the futility of their proposed amendment. Cooke, 2025
WL 27662, at *9. However, because we affirm on the other grounds artic-
ulated by the district court, we do not reach whether the proposed
amendment was futile.
9
Bengis concerned whether crimes of conspiring to commit smuggling un-
der 18 U.S.C. § 371 and violations of the Lacey Act, 16 U.S.C.

31

Br. at 57. Thus, Relators assert that, “[a]lthough Miller might still
permit such a claim [under Section 3729(a)(1)(G)], the Bengis doc-
trine now fits more naturally under [Section] 3729(a)(1)(D).” Id.
at 57–58 n.10.
To be sure, our 2024 decision in Miller substantially under-
mined any argument regarding a plausible reverse false claim in
the amended complaint under Section 3729(a)(1)(G), for the rea-
sons discussed supra. However, any potential conversion claim
under Section 3729(a)(1)(D) based on Bengis, which was decided
in 2011, existed long before this litigation was commenced and
was unaffected by our decision in Miller. In other words, Relators
were free, when drafting the original complaint and the amended
complaint, to also assert the Section 3729(a)(1)(D) claim that they
now seek to add but chose to omit from their first two complaints.
In short, the district court was not required to provide Relators
with another opportunity to amend when they could have
brought this separate claim earlier and raised it only after the dis-
trict court had stated that no further amendments would be al-
lowed. See Nat'l Credit Union Admin. Bd. v. U.S. Bank Nat'l Ass'n,
898 F.3d 243, 258 (2d Cir. 2018) (“[A] busy district court need not
allow itself to be imposed upon by the presentation of theories
seriatim.”) (internal quotation marks and citation omitted).
Accordingly, it was not an abuse of discretion to deny the re-
quest to further amend the complaint given the undue delay in
raising the new claim. See Solomon v. Flipps Media, Inc., 136 F.4th
41, 55 (2d Cir. 2025); Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d
274, 276 (2d Cir. 2006).

§ 3372(a)(2)(A), were “offenses against property.” We held that South Af-
rica had a property interest in illegally harvested lobsters because the il-
legal harvesting “deprived South Africa of proceeds from the sale of the
illegally harvested lobsters.” Bengis, 631 F.3d at 40.

32

CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.