Supreme Court Nominee Merrick Garland’s Whistleblower Decisions

President Obama announced the nomination of D.C. Circuit Court of Appeals Chief Judge Merrick Garland to the Supreme Court at a press conference at 11 AM today. The pick will now be sent to the Senate, which the U.S. Constitution provides with the power to provide advice and consent to the President on the appointment.

Chief Judge Garland was appointed to the D.C. Circuit Court of Appeals by President Bill Clinton in 1995. Garland became chief judge of the D.C. Circuit on February 12, 2013. Judge Garland was interviewed by President Obama for the Supreme Court vacancy in 2010 filled by Elena Kagan.

Republican Senate leadership has previously indicated they would not approve President Obama’s nomination to replace Justice Antonin Scalia. Instead, Republicans argue that the next Supreme Court Justice should be appointed by the winner of the Presidential election in 2016.

While we await the upcoming partisan confirmation battle, we thought it worth looking at the decisions of Judge Garland in False Claims Act whistleblower cases. We found two opinions from Judge Garland – a 1998 opinion on whistleblower retaliation brought under § 3730(h) in U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998) and a dissenting opinion in U.S. ex rel. Totten v. Bombadier Corp., 380 F.3d 488 (D.C. Cir. 2004).

Totten on Presentment

In Totten, the majority opinion by Judge Roberts (before appointment to the Supreme Court) held that an invoice submitted to Amtrak for payment was not a claim presented to an officer or employee of the United States Government. Judge Garland argued that the conduct alleged was a violation of the False Claims Act as a false statement made to get the Government to pay a false claim.

The dissenting opinion by Judge Garland broadly argues that the False Claims Act allows the United States to recover federal funds lost by false claims to federal grant recipients.

Judge Garland writes, “Although Amtrak receives billions of dollars in federal funds that it uses to pay contractor invoices, because it does not (and is not required to) re-present those invoices to the federal government, the court’s ruling immunizes those who defraud even that government-funded corporation from False Claims Act liability.”

The opinion quotes legislative history in both the House and Senate suggesting that the purpose of the false records or statements subsection was to cover false statements or claims to a party other than the Government which results in a loss of U.S. funds.

The opinion also recognized the importance of the protection of federal funds granted to third parties for the policy concerns behind the False Claims Act. Judge Garland expressly agreed that limiting out claims made to third parties receiving federal funds would inflict injury on the federal fisc. “The consequence of today’s ruling is a dramatic cutback in the federal government’s ability to protect itself against false claims on federal grant money.”

The dissenting opinion was later supported by a unanimous Supreme Court in Allison Engine (2008) declining to require presentment in a FCA lawsuit.

Yesudian on Retaliation

In Yesudian, Judge Garland’s opinion for the D.C. Circuit overturned the district court determination that a whistleblower could not be retaliated against under the False Claims Act because he had not initiated a government investigation or qui tam at the time of the retaliation. Judge Garland relied on the in furtherance language to conclude that the whistleblower did not need to have already brought a winning qui tam before the retaliation. According to Garland, “An initial investigation may well further an action under the [False Claims] Act, even though the employee does not know it at the time of the investigation.”

Judge Garland also rejected a requirement that the whistleblower must inform their employer of their status in order to bring a valid claim. “But since there is no requirement that a plaintiff know his investigation could lead to a False Claims Act action, there likewise can be no requirement that he ‘suggest[ ] to defendant’ that he is contemplating such an action.”

Two other points are worth bringing up:

Judge Garland was an Assistant U.S. Attorney for the District of Columbia from 1989 to 1992. Although much of his time was probably spent on the Oklahoma City bombing case, he probably also was exposed to False Claims Act cases because of the Justice Department’s role in them.

The D.C. Circuit is one of the Circuit Courts which has held that cases of implied false certification can proceed under the False Claims Act. This issue is touched upon by a case currently under consideration by the Supreme Court, Universal Health Services v. U.S. ex rel. Escobar. Judge Garland is unlikely to be appointed to the Court in time for consideration of this case, however.

For additional information about his record in this area, please contact one of our False Claims Act attorneys.

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