In a July 31 case of first impression, the 5th U.S. Circuit Court of Appeals answered this question: “Is 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 qui tam action?” The question arose in Little, et al. v. Shell Exploration & Production Co., et al., a qui tam case filed by two auditors at the Minerals Management Service (MMS), an agency within the Department of the Interior. The auditors alleged that Shell deprived the U.S. government of royalty earnings on oil and gas leases. Shell denied the allegations, and the government declined to get involved in the case, so the MMS employees filed the qui tam action themselves. The False Claims Act describes qui tam actions as suits brought “for the person and for the United States Government.” But the trial court dismissed the case on summary judgment, agreeing with Shell’s argument that government employees are not “persons” allowed to bring qui tam actions. “The argument is that because the government can only act through individuals, a government employee cannot act ‘for the United States’; that person is the United States,” wrote 5th Circuit Judge Leslie Southwick, in a decision that reversed and remanded the case to the trial court. Judges Jerry Smith and Emilio Garza sat on the panel with Southwick. “We are unconvinced. A person can have two legal identities, one official and one individual,” Southwick wrote. There are some good public policy reasons for letting government employees file qui tam actions, Southwick noted. “The government has monetary and personnel constraints that do not enable it to pursue every lead or prosecute every wrongdoer. By nature, bureaucracies can be slow to act, and on occasion can fall victim to corruption or restrictive partisan agendas. There is potential for governmental relators to prompt more agency responsiveness even when suits are not filed. Additionally, the prospect of monetary awards might provide public servants with additional incentives to ferret out fraud.” Sean Connelly, a partner in Denver’s Reilly Pozner who represents the plaintiffs, did not return a telephone call seeking comment. Daniel M. McClure, a partner in Houston’s Fulbright & Jaworski who represents the defendants, was out of the office and could not be reached for comment. “We are hopeful that the court will dismiss the case again when it reviews the evidence as directed by the 5th Circuit. However, we are equally prepared to defend ourselves should this matter go to trial. No decision has been made with respect to an appeal,” says Bill Tanner, a Shell spokesman.
Called to Serve
On July 30, Secretary of Defense Leon Panetta appointed Walter Huffman, Texas Tech University School of Law dean emeritus and professor, to the Defense Legal Policy Board. Huffman also will co-chair the board subcommittee examining military justice in combat zones. Huffman says the first mission for the board and the subcommittee will be to “look at the issue of how our military justice system is working in the deployed environment.” He says the goal is to make sure justice is done in cases where civilian deaths are attributable to U.S. forces. Huffman adds that it is important for Afghan people who lost loved ones to have confidence that, if someone should be held criminally responsible, he or she will be. Another part of the board’s initial task is ensuring “that, because war is a difficult operation for the young men and women who are fighting, the rights of those who cause death inadvertently are protected,” says Huffman, a retired major general and former judge advocate in the Army. “I am quite honored to have been selected for this very important task,” he says. Panetta also appointed Texas Tech law professor Richard Rosen, director of the law school’s Center for Military Law and Policy, to the military justice subcommittee. Rosen, a retired colonel and judge advocate in the Army, says he worked for Huffman in the Army and at Texas Tech and is “honored to be on any committee of which [Huffman] is in charge.”
