U.S. Federal Government Employees Eligible as Relators in False Claims Act Lawsuits

by Sven Magnussen

Little v. Shell Exploration & Production Co. et al., Civ. A. No. 11-20320 (5th Cir. July 31, 2012) the Fifth Circuit held that two U.S. federal government employees were not deprived of standing because of their employment status as auditors under the False Claims Act.

In Little v. Shell Exploration & Production Co. et al., Civ. A. No. 11-20320 (5th Cir. July 31, 2012), the Fifth Circuit answered the question "[i]s a federal employee, even one whose job it is to investigate fraud, a 'person' under the False Claims Act such that he may maintain a False Claim Act violation lawsuit as a relator on behalf of the United States of America?"

Little was a Senior Auditor and Arnold, his co-relator, was a Supervisory Auditor. Both worked for the Minerals Management Service (MMS), a former agency within the Department of the Interior that administered leases for Defendant Shell. Part of MMS' function was to detect fraud in the royalty programs. While employed by MMS, the two relators reported to their supervisor that Shell had deprived the U.S. of royalties by taking unauthorized deductions for certain expenses. Having received no response to their report, the two relators filed a qui tam action in 2006 alleging that Shell had defrauded the Department of the Interior of at least $19 million between 2001 and 2006.

After the government declined to intervene in the case, Shell was served and promptly moved for summary judgment. The district court granted summary judgment in favor of Shell and the relators timely appealed. On appeal, Shell and the government unsuccessfully argued that 31 U.S.C. § 3730(b)(1)'s subsection heading - "Actions by private persons," restricts the pool of potential relators under the FCA to only non-governmental persons. The U.S. Government filed an amicus curiae brief siding with Shell on the issue.

Acknowledging that there is somewhat of a circuit split on the issue, the Fifth Circuit, however, disagreed and found that the statutory text and legislative history of the False Claims Act, as well as simple logic did not support such a limitation. Employees of the U.S. federal government may bring claims under the Federal False Claims Act in the Fifth Circuit.

SEC Announces $30 Million Whistleblower Award

by Sven Magnussen

The Securities and Exchange Commission ("SEC") announced on September 22, 2014 an award of $30 million to a whistleblower who provided information that led to a successful SEC enforcement action.

The SEC stated:

The SEC’s whistleblower program rewards high-quality, original information that results in an SEC enforcement action with sanctions exceeding $1 million. Whistleblower awards can range from 10 percent to 30 percent of the money collected in a case. The money paid to whistleblowers comes from an investor protection fund established by Congress at no cost to taxpayers or harmed investors. The fund is financed through monetary sanctions paid by securities law violators to the SEC. Money is not taken or withheld from harmed investors to pay whistleblower awards.

The order resulting from an SEC hearing on the matter was as follows:

Oaths of Fealty

by Sven Magnussen

A loyalty oath to an ineligible President of the United States is a oath of fealty to a usurper. As a check on the power of the President, all Members of Congress, all judicial officers, and all U.S. federal officers must state a loyalty oath to support the U.S. Constitution.

In law, treason is the crime of disloyalty to one's nation. A person who betrays the nation of their citizenship and disrespects their oath of loyalty and willfully cooperates with an enemy of the nation, is a traitor.

"The Senators and Representatives before mentioned, and Members of the several State Legislatures, and all executive and judicial officers, both of the United States, shall be bound by Oath of Affirmation, to support this constitution," pursuant to Art. VI, § 3, U.S. Constitution.

"An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he advocates the overthrow of our constitutional form of government," pursuant to 5 U.S.C. § 7311(1).

"An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law," pursuant to 5 U.S.C. § 3331.

Forfeiture of Retirement benefits pursuant to 5 U.S.C. § 8312 - Conviction of certain offenses

(a) An individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual which is creditable toward the annuity or retired pay, subject to the exceptions in section 8311 (2) and (3) of this title, if the individual—

(1) was convicted, before, on, or after September 1, 1954, of an offense named by subsection (b) of this section, to the extent provided by that subsection; or

(2) was convicted, before, on, or after September 26, 1961, of an offense named by subsection (c) of this section, to the extent provided by that subsection.

The prohibition on payment of annuity or retired pay applies—

(A) with respect to the offenses named by subsection (b) of this section, to the period after the date of the conviction or after September 1, 1954, whichever is later; and

(B) with respect to the offenses named by subsection (c) of this section, to the period after the date of conviction or after September 26, 1961, whichever is later.

(b) The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 1, 1954:

(1) An offense within the purview of—

(A) section 792 (harboring or concealing persons), 793 (gathering, transmitting, or losing defense information), 794 (gathering or delivering defense information to aid foreign government), or 798 (disclosure of classified information), of chapter 37 (relating to espionage and censorship) of title 18;

(B) chapter 105 (relating to sabotage) of title 18;

(C) section 2381 (treason), 2382 (misprision of treason), 2383 (rebellion or insurrection), 2384 (seditious conspiracy), 2385 (advocating overthrow of government), 2387 (activities affecting armed forces generally), 2388 (activities affecting armed forces during war), 2389 (recruiting for service against United States), or 2390 (enlistment to serve against United States), of chapter 115 (relating to treason, sedition, and subversive activities) of title 18;

(D) section 10(b)(2), (3), or (4) of the Atomic Energy Act of 1946 (60 Stat. 766, 767), as in effect before August 30, 1954;

(E) section 16(a) or (b) of the Atomic Energy Act of 1946 (60 Stat. 773), as in effect before August 30, 1954, insofar as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation; or

(F) an earlier statute on which a statute named by subparagraph (A), (B), or (C) of this paragraph (1) is based.

(2) An offense within the purview of—

(A) article 104 (aiding the enemy), article 106 (spies), or article 106a (espionage) of the Uniform Code of Military Justice (chapter 47 of title 10) or an earlier article on which article 104 or article 106, as the case may be, is based; or

(B) a current article of the Uniform Code of Military Justice (or an earlier article on which the current article is based) not named by subparagraph (A) of this paragraph (2) on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved.

(3) Perjury committed under the statutes of the United States or the District of Columbia—

(A) in falsely denying the commission of an act which constitutes an offense within the purview of—

(i) a statute named by paragraph (1) of this subsection; or
(ii) an article or statute named by paragraph (2) of this subsection insofar as the offense is within the purview of an article or statute named by paragraph (1) or (2) (A) of this subsection;

(B) in falsely testifying before a Federal grand jury, court of the United States, or court-martial with respect to his service as an employee in connection with a matter involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States; or

(C) in falsely testifying before a congressional committee in connection with a matter under inquiry before the congressional committee involving or relating to an interference with or endangerment of, or involving or relating to a plan or attempt to interfere with or endanger, the national security or defense of the United States.

(4) Subornation of perjury committed in connection with the false denial or false testimony of another individual as specified by paragraph (3) of this subsection.

(c) The following are the offenses to which subsection (a) of this section applies if the individual was convicted before, on, or after September 26, 1961:

(1) An offense within the purview of—

(A) section 2272 (violation of specific sections) or 2273 (violation of sections generally of chapter 23 of title 42) of title 42 insofar as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation;
(B) section 2274 (communication of restricted data), 2275 (receipt of restricted data), or 2276 (tampering with restricted data) of title 42; or
(C) section 783 (conspiracy and communication or receipt of classified information) of title 50 or section 601 of the National Security Act of 1947 (50 U.S.C. 421) [1] (relating to intelligence identities).

(2) An offense within the purview of a current article of the Uniform Code of Military Justice (chapter 47 of title 10) or an earlier article on which the current article is based, as the case may be, on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved.

(3) Perjury committed under the statutes of the United States or the District of Columbia in falsely denying the commission of an act which constitutes an offense within the purview of a statute named by paragraph (1) of this subsection.

(4) Subornation of perjury committed in connection with the false denial of another individual as specified by paragraph (3) of this subsection.

(d)

(1) For purposes of subsections (b)(1) and (c)(1), an offense within the meaning of such subsections is established if the Attorney General of the United States certifies to the agency administering the annuity or retired pay concerned—

(A) that an individual subject to this chapter has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances in which the conduct violates the provisions of law enumerated in subsections (b)(1) and (c)(1), or would violate such provisions had such conduct taken place within the United States, and that such conviction is not being appealed or that final action has been taken on such appeal;

(B) that such conviction was obtained in accordance with procedures that provided the defendant due process rights comparable to such rights provided by the United States Constitution, and such conviction was based upon evidence which would have been admissible in the courts of the United States; and

(C) that such conviction occurred after the date of enactment of this subsection.

(2) Any certification made pursuant to this subsection shall be subject to review by the United States Court of Claims based upon the application of the individual concerned, or his or her attorney, alleging that any of the conditions set forth in subparagraphs [2] (A), (B), or (C) of paragraph (1), as certified by the Attorney General, have not been satisfied in his or her particular circumstances. Should the court determine that any of these conditions has not been satisfied in such case, the court shall order any annuity or retirement benefit to which the person concerned is entitled to be restored and shall order that any payments which may have been previously denied or withheld to be paid by the department or agency concerned.