Josephs v. Amentum Services, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ADAM JOSEPHS 	*
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Plaintiff, 	*
* 	Civil Case No.: SAG-25-01477
v. 	*
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AMENTUM SERVICES INC., et al. 	*
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Defendants. 	*
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* 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OPINION
On November 19, 2025, this Court entered a memorandum opinion and order denying in
part the motion filed by Defendants Amentum Services, Inc. and URS Federal Services
International, Inc. (collectively, “Defendants”) to dismiss Plaintiff-Relator Adam Josephs’s
(“Plaintiff’s”) Amended Complaint. ECF 90, 91. Defendants have now filed a motion to certify
that order for immediate interlocutory appeal. ECF 93. Plaintiff has opposed the motion, ECF 97,
and Defendants have filed a reply, ECF 99.1 This Court has reviewed all of these filings and has
determined that no hearing is necessary. Loc. R. 105.6 (D. Md. 2025). For the reasons set forth
below, Defendants’ motion will be denied.
I. 	LEGAL STANDARD
A district court may exercise its discretion to certify an order for interlocutory appeal when
(1) the order involves “a controlling question of law,” (2) there exists “substantial ground for
1 Additionally, Plaintiff filed a motion to compel Defendants to participate in a conference pursuant
to Federal Rule of Civil Procedure 26(f). ECF 96. This Court will deny that motion as moot
because a scheduling order will issue along with this opinion and accompanying order, allowing
discovery to commence.
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difference of opinion,” and (3) “an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
Interlocutory appeal is an “extraordinary remedy.” Fannin v. CSX Transp., Inc., 873 F.2d
1438, at *2 (4th Cir. 1989) (unpublished table decision). It should be granted only when
“exceptional circumstances justify a departure from the basic policy of postponing appellate
review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475
(1978) (quoting Fisons Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972)). Courts should
grant interlocutory appeal “sparingly” and must strictly construe the requirements of § 1292(b).
Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). And even if each requirement in § 1292(b) is
satisfied, the district court retains discretion to decline to certify an interlocutory appeal. Manion
v. Spectrum Healthcare Res., 966 F. Supp. 2d 561, 567 (E.D.N.C. 2013).
II. 	DISCUSSION
Plaintiff filed this action pursuant to the False Claims Act (“FCA”). ECF 63. Defendants
now seek to certify two questions relating to the FCA for interlocutory appeal.
In this Court’s memorandum opinion, ECF 90, it concluded that Plaintiff had adequately
pled falsity, one of the elements of his FCA claims, through an implied false certification theory.
Id. at 14–15. This Court reasoned that in articulating a standard for pleading implied false
certification, the Supreme Court in Universal Health Services, Inc. v. United States ex rel. Escobar,
579 U.S. 176, 188, 190 (2016), explicitly left unresolved whether other standards for doing so,
including one previously articulated by the Fourth Circuit, remained viable. This Court also noted
that, since that decision, the Fourth Circuit had suggested that to the extent that the Escobar Court
had left that question unresolved, the Fourth Circuit had already concluded that its previously
articulated standard sufficed. See United States ex rel. Badr v. Triple Canopy, Inc., 857 F.3d 174,
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178 n.3 (4th Cir. 2017). Defendants seek to certify for interlocutory appeal whether the Escobar
standard constitutes the only, or at least the lowest, means to plead implied false certification.
This Court’s memorandum opinion also rejected a challenge to the constitutionality of the
FCA’s qui tam provisions. ECF 90 at 28, 30. Defendants seek to certify whether those provisions
violate Article II of the Constitution.
This Court will now address whether either question satisfies each element of § 1292(b).
A. Controlling Question of Law
A controlling question of law involves a pure legal issue whose resolution does not require
factual determinations. United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330,
340–41 (4th Cir. 2017). In describing the “controlling question of law” requirement, the Fourth
Circuit has also noted that “the kind of question best adapted to discretionary interlocutory review
is a narrow question of pure law whose resolution will be completely dispositive of the litigation,
either as a legal or practical matter, whichever way it goes.” Fannin, 873 F.2d at *5.
Whether the Escobar standard constitutes the only way to plead implied false certification
is a pure question of law involving no factual determinations. As this Court determined in its
memorandum opinion, whether Plaintiff adequately pled falsity, and therefore his FCA claims,
turns on this question. ECF 90 at 13. If the Fourth Circuit were to reverse, then this question would
be controlling in the sense that Plaintiff’s claims would fail. The question is not controlling,
however, in the sense that if the Fourth Circuit were to affirm this Court’s decision, the litigation
would continue unchanged. Thus, this question is not of the kind “best adapted” to interlocutory
appeal because its resolution would not “be completely dispositive of the litigation, either as a
legal or practical matter, whichever way it goes.”
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The constitutionality of the FCA’s qui tam provisions is also a purely legal question, and
the impact of its resolution would similarly turn on the substance of that resolution. If the Fourth
Circuit were to conclude that the provisions are unconstitutional, Plaintiff’s claims could not
proceed, but if the Fourth Circuit were to affirm this Court’s ruling, the claims could proceed.
Thus, it appears that this question is similarly not of the kind “best adapted” to interlocutory appeal.
B. Substantial Ground for Difference of Opinion
Turning to the second requirement, substantial ground for difference of opinion will often
exist when “the circuits are in dispute on the question and the court of appeals of the circuit has
not spoken on the point.” Int’l Refugee Assistance Project v. Trump, 404 F. Supp. 3d 946, 950 (D.
Md. 2019) (quoting Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010)). Neither lack of
unanimity among courts nor lack of relevant authority, however, suffice to show substantial ground
for difference of opinion. Id.
Regarding the implied false certification question, this Court notes that although the Fourth
Circuit has not squarely addressed this question, it has “spoken on the point” and indicated that it
would likely resolve the issue consistently with how this Court resolved it. See Triple Canopy, 857
F.3d at 178 n.3. This Court acknowledges that many courts have dismissed claims for failure to
satisfy the Escobar standard, contrary to this Court’s determination. As described in more detail
in this Court’s memorandum opinion, however, those courts have generally done so without any
analysis as to whether the Escobar standard constitutes the only way to plead implied false
certification. See ECF 90 at 13–14. Indeed, the only cases identified by Defendants that addressed
whether relators could plead implied false certification in other ways have indicated that Escobar
left open that possibility. See United States ex rel. Rose v. Stephens Inst., 909 F.3d 1012, 1018 (9th
Cir. 2018) (stating that were it examining Escobar as a matter of first impression, it likely would
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not conclude that the Escobar standard constitutes the only way to plead implied false
certification); United States ex rel. Jackson v. DePaul Health Sys., 454 F. Supp. 3d 481, 500 (E.D.
Pa. 2020) (stating that the Supreme Court “left open the question” of whether the Escobar standard
constitutes the only way to plead implied false certification). Thus, it is not clear that substantial
ground for difference of opinion exists.2
Regarding the question of the FCA’s constitutionality, the parties agree that the Fourth
Circuit has not addressed it. Although a growing number of voices have expressed skepticism of
the FCA’s qui tam provisions, those voices remain, at this point, confined to concurring or
dissenting opinions or the rulings of a single district judge. See ECF 90 at 25. In contrast, every
other district court and court of appeals to have addressed the issue has upheld the constitutionality
of the qui tam provisions. See id. Thus, it is not clear to this Court that substantial ground for
difference of opinion exists as to this question either.
C. Material Advancement
The final element requires that interlocutory appeal “may materially advance the ultimate
termination of the litigation.” Plaintiff points to an unpublished district court opinion concluding
that a question will satisfy this element only if its resolution will materially advance termination
of the litigation regardless of the substance of that resolution. See Donlen Trust v. Wayne Servs.
Legacy, Inc., Civ. No. 3:20cv092 (DJN), 2020 WL 1550579, at *8 (E.D. Va. Apr. 1, 2020). As
Defendants persuasively counter, however, § 1292(b) requires only that interlocutory appeal
2 Nor is this Court persuaded by Defendants’ new argument that even if the Escobar standard does
not constitute the only means by which a relator may plead implied false certification, it constitutes
the lowest means. In explicitly leaving unresolved whether other means would suffice, the Escobar
Court referenced a lower standard. See Escobar, 579 U.S. at 188 (“We need not resolve whether
all claims for payment implicitly represent that the billing party is legally entitled to payment.”).
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“may” materially advance termination of the litigation. Particularly in light of the fact that the
same subsection uses the mandatory “shall” in other places, the text makes clear that interlocutory
appeal need not necessarily materially advance the termination of the litigation.
Resolution of each question on interlocutory appeal “may materially advance the ultimate
termination of the litigation.” As discussed above, reversal by the Fourth Circuit on either question
would defeat Plaintiff’s claims. Both questions therefore satisfy this requirement.
D. Exercise of Discretion
Although this Court has concluded that both questions satisfy the third element, it is less
clear whether either question meets the first or second elements for interlocutory appeal. Even
assuming that each of these elements were satisfied, however, this Court would not exercise its
discretion to permit an interlocutory appeal. This Court discerns nothing exceptional about the
circumstances here that would warrant the “extraordinary remedy” of interlocutory appeal.
Although there exists the chance that an appellate decision following final judgment in this case
may prove that the case could have been resolved much sooner, this Court is “confident enough”
in its rulings on these questions to believe that moving this case to discovery is the more
expeditious choice at this juncture. See United States ex rel. Fitzer v. Allergan, Inc., Civ. No. 1:17-
cv-00668-SAG, 2022 WL 9974736, at *3 (D. Md. Oct. 17, 2022) (declining to exercise discretion
to permit interlocutory appeal).
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III. 	CONCLUSION
For the reasons stated above, this Court will deny as moot Plaintiff’s motion to compel
participation in a Rule 26(f) conference, ECF 96, and will deny Defendants’ motion for
interlocutory appeal certification, ECF 93. A separate Order follows.
Dated: January 23, 2026 	/s/
Stephanie A. Gallagher
United States District Judge
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