Where Does Supreme Court Nominee Brett Kavanaugh Stand on the False Claims Act?

On Monday night, D.C. Circuit Judge Brett Kavanaugh was selected by President Donald J. Trump to succeed Justice Anthony Kennedy on the United States Supreme Court.  The 53-year-old Kavanaugh has spent the last 12 years as a federal judge on the D.C. Circuit Court of Appeals where he authored over 300 opinions.

While many are rightfully concerned with the implications this appointment may have on the Second Amendment, abortion rights, the future of healthcare, and executive branch authority, this potential Supreme Court Justice may also make critical decisions related to the Federal False Claims Act.  To that end, I decided to review all of the FCA cases where Kavanaugh was a presiding Circuit Judge in the D.C. Circuit Court of Appeals over the last 12 years.

Since Kavanaugh’s appointment by President Bush, there have been 18 decisions related to the False Claims Act by D.C. Circuit Court of Appeals panels that included Kavanaugh.  Some of these decisions only make passing references or comparisons to the FCA statutes and a few were unpublished decisions related to legal affirmations that Relators may not proceed with FCA cases pro se.

You might be interested to know that of all the FCA-specific cases that I reviewed, all of the decisions by panels where Kavanaugh presided were either per curiam or unanimous decisions. This would imply that Kavanaugh did not have serious differences of opinion with his fellow Circuit Judges when it came to interpreting the False Claims Act.  Also of note, Kavanaugh has authored the opinion for only one of these FCA-specific cases.

Judge Kavanaugh authored In re Kellogg Brown & Root, Inc.,  410 U.S. App. D.C. 382, 756 F.3d 754 (2014), an opinion well-known for its application of the attorney-client privilege.  That case stemmed from United States ex rel. Barko v. Halliburton Co., where a Relator alleged that his employer, Kellogg Brown & Root (“KBR”) and certain subcontractors defrauded the U.S. Government by inflating costs and accepting kickbacks while administering military contracts in wartime Iraq.  During discovery, the Relator sought documents related to KBR’s prior internal investigation into the alleged fraud.  The District Court ruled that the attorney-client privilege did not apply, but KBR petitioned for a writ of mandamus and asked to vacate the production order.

The D.C. Circuit Court of Appeals and Kavanaugh granted mandamus relief.  Writing for the court, Kavanaugh held that the district court had erred and that KBR’s internal investigation was protected by the attorney-client privilege.  Kavanaugh further held that the Relator was able to pursue the facts underlying KBR’s investigation, but he was not entitled to KBR’s own investigative files.

Of interest, while that case dealt primarily with the attorney-client privilege in a qui tam action, Kavanaugh also sat on the panel that unanimously decided United States ex rel. Purcell v. MWI Corp., 420 U.S. App. D.C. 176, 807 F.3d 281 (2015).  The outcome of this case was considered to be a significant setback for the U.S. Department of Justice.

In United States ex rel. Purcell v. MWI Corp., the court reversed a multimillion-dollar jury verdict for the government and remanded the action to the district court with instructions to enter final judgment for MWI.  The Court of Appeals ruled that the Defendant manufacturer’s failure to report its sales agent’s commission did not violate the FCA.  In coming to this result, the court held there was not sufficient evidence that the manufacturer was “warned away” from its interpretation of the regulations.  In other words, the court held that the manufacturer could not have knowingly submitted false claims because it relied on a reasonable interpretation of an ambiguous term that the government left undefined.  The court also rejected a number of FCA arguments the Justice Department routinely makes in response to “ambiguous regulation” defenses.  This decision undoubtedly limited FCA liability.

Judge Kavanaugh is certainly familiar with the False Claims Act and the above cases may provide some insight as to his view on future cases that are brought before him.

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