BERG v OBAMA (FCA) - APPEAL - Appellee Brief - Transport Room

8/9/2019 BERG v OBAMA (FCA) - APPEAL - Appellee Brief - Transport Room

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[CASE BEING CONSIDERED FOR TREATMENT PURSUANT TORULE 34(j) OF THE COURTS RULES]

No. 09-5362

IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

________________________

PHILIP J. BERG, ESQUIRE, on his Behalf andon Behalf of the Government of the United

States of America,

Appellant,

v.

BARACK HUSSEIN OBAMA AND UNITED STATES OF AMERICA,Appellees.

_______________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA________________________

BRIEF FOR THE UNITED STATES________________________

TONY WESTAssistant Attorney General

RONALD C. MACHEN JR.United States Attorney

MARK B. STERN

(202) 514-5089ERIC FLEISIG-GREENE(202) 514-4815Attorneys, Appellate StaffCivil Division, Room 7214U.S. Department of Justice950 Pennsylvania Ave., N.W.Washington, DC 20530-0001

Case: 09-5362 Document: 1235869 Filed: 03/19/2010 Page: 1


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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), the undersigned counsel

certifies as follows:

A. Parties and Amici:

Relator in the district court, and appellant in this Court,

is Philip J. Berg. Defendant in the district court, and appellee

in this Court, is Barack Hussein Obama. Real party in interest

in the district court, and appellee in this Court, is the United

States of America.

B. Rulings Under Review:

The rulings under review are the district courts order of

dismissal, dated June 9, 2009, and the district courts

memorandum opinion and order denying relators motion for

reconsideration, dated September 21, 2009, in United States ex

rel. Philip J. Berg v. Barack Hussein Obama, Civil Action No.

08-cv-01933 (D.D.C.) (Judge Richard W. Roberts). The courts

memorandum opinion is reported at 656 F. Supp. 2d 107. No

official citation exists for the courts orders.

C. Related Cases:

This case has not previously been before this Court or any

other court. Counsel for the United States are not aware of any

other related cases within the meaning of D.C. Circuit Rule

28(a)(1)(C). Counsel are aware of other cases arising from

similar or identical factual allegations and similar or identical

parties, but that do not involve sufficiently similar legal



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issues to this case to qualify as related cases under

D.C. Circuit Rule 28(a)(1)(C). Those cases are: Berg v. Obama,

586 F.3d 234 (3d Cir. 2009); Cohen v. Obama, No. 09-5012 (D.C.

Cir. Sept. 8, 2009) (per curiam judgment); Allen v. Soetoro,

No. 10-15290 (9th Cir. Mar. 10, 2010) (unpublished order);

Hamblin v. Obama, No. 09-17014 (9th Cir. Nov. 6, 2009)

(unpublished order); Cook v. Good, No. 09-14698 (11th Cir. Nov.

24, 2009 and Feb. 26, 2010) (unpublished orders); Rhodes v.

MacDonald, No. 09-15418 (11th Cir. Mar. 15, 2010) (unpublished

per curiam opinion); Hollister v. Soetoro, Nos. 09-5080, 09-5161

(D.C. Cir.) (consol.); Kerchner v. Obama, No. 09-4209 (3d Cir.);

Drake v. Obama, Nos. 09-56827, 10-55084 (9th Cir.) (consol.);

In Re Super American Grand Jury, No. 09-346 (D.D.C.); Strunk v.

U.S. Dept of State, No. 08-2234 (D.D.C.); and Taitz v. Obama,

No. 10-151 (D.D.C.).

/s/ Eric Fleisig-GreeneEric Fleisig-GreeneAttorney for the United StatesCivil Division, Room 7214U.S. Department of Justice950 Pennsylvania Ave., N.W.Washington, DC [email protected]



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TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUE PRESENTED. . . . . . . . . . . . . . . . 2

STATUTES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . 3

A. Statutory and Regulatory Background.. . . . . . . . . . 3

B. Facts and Prior Proceedings.. . . . . . . . . . . . . . 6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 7

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM



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TABLE OF AUTHORITIES

Cases

Berg v. Obama, 586 F.3d 234 (3d Cir. 2009). . . . . . . . . . 10

Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008). . . . . . 10

Cummings v. Dept of Navy, 279 F.3d 1051 (D.C. Cir. 2002).. . . 8

Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009).. . . 10

Hunter v. Dist. of Columbia,384 F. Supp. 2d 257 (D.D.C. 2005).. . . . . . . . . . . . . 11

Swift v. United States, 318 F.3d 250 (D.C. Cir. 2003). . . 9-12*

United States v. Armstrong, 517 U.S. 456 (1996).. . . . . . . 11

United States ex rel. Hoyte v. Am. Natl Red Cross,*

518 F.3d 61 (D.C. Cir. 2008). . . . . . . . . . . . . 7-10, 12

United States ex rel. Sequoia Orange Co. v. Baird-NeecePacking Corp., 151 F.3d 1139 (9th Cir. 1998). . . . . . . . . 9

Vt. Agency of Natural Res. v. United States ex rel. Stevens,529 U.S. 765 (2000).. . . . . . . . . . . . . . . . . . . . . 4

Statutes

Fraud Enforcement and Recovery Act of 2009,Pub. L. No. 111-21, sec. 4, 123 Stat. 1617, 1621-25.. . . . . 4

18 U.S.C. 205.. . . . . . . . . . . . . . . . . . . . . . . 11

18 U.S.C. 208.. . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. 287.. . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. 1001. . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . 2

Authorities upon which we chiefly rely are marked with*

asterisks.

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31 U.S.C. 3729 et seq.. . . . . . . . . . . . . . . . . . . 1-3

31 U.S.C. 3729(a)(1). . . . . . . . . . . . . . . . . . . . . 4

31 U.S.C. 3729(a)(1)(A).. . . . . . . . . . . . . . . . . . . 3

31 U.S.C. 3729(a)(1)(B)-(G). . . . . . . . . . . . . . . . . 4

31 U.S.C. 3729(b)(2). . . . . . . . . . . . . . . . . . . . . 3

31 U.S.C. 3730(a).. . . . . . . . . . . . . . . . . . . . . . 4

31 U.S.C. 3730(b)(1). . . . . . . . . . . . . . . . . . . . 4-5

31 U.S.C. 3730(b)(4). . . . . . . . . . . . . . . . . . . . . 5

31 U.S.C. 3730(c)(1)-(2).. . . . . . . . . . . . . . . . . . 5

31 U.S.C. 3730(c)(2)(A). . . . . . . . . . . . . . . 2-3, 6-10*

31 U.S.C. 3730(c)(2)(B).. . . . . . . . . . . . . . . . . . . 5

31 U.S.C. 3730(c)(3). . . . . . . . . . . . . . . . . . . . . 5

31 U.S.C. 3730(c)(4). . . . . . . . . . . . . . . . . . . . . 5

31 U.S.C. 3730(d).. . . . . . . . . . . . . . . . . . . . . . 4

Other Authorities

5 C.F.R. 2635.502.. . . . . . . . . . . . . . . . . . . . . 12

Fed. R. Civ. P. 41(a)(1)(A)(i). . . . . . . . . . . . . . . . . 9

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[CASE BEING CONSIDERED FOR TREATMENT PURSUANT TORULE 34(j) OF THE COURTS RULES]

IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

________________________

No. 09-5362________________________

PHILIP J. BERG, ESQUIRE, on his Behalf andon Behalf of the Government of the United

States of America,

Appellant,

v.

BARACK HUSSEIN OBAMA AND UNITED STATES OF AMERICA,

Appellees._______________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA________________________

BRIEF FOR THE UNITED STATES________________________

STATEMENT OF JURISDICTION

Appellant Philip J. Berg filed suit in the name of the

United States against President Barack Obama under the False

Claims Act, 31 U.S.C. 3729 et seq., seeking to recover Obamas

Senate salary on the theory that Obama was constitutionally

ineligible to serve as a Senator because he is not a United

States citizen. The district court dismissed the suit at the

suggestion of the United States on June 9, 2009, and denied

Bergs motion to reconsider on September 21, 2009. Appendix

(App.) 3-4. Berg filed a timely notice of appeal on October



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21, 2009. App. 1-2. This Court has jurisdiction pursuant to

28 U.S.C. 1291.

STATEMENT OF THE ISSUE PRESENTED

The False Claims Act provides that when an individual brings

suit under its provisions, in the name of the United States,

[t]he Government may dismiss the action notwithstanding the

objections of the person initiating the action if the person has

been notified by the Government of the filing of the motion and

the court has provided the person with an opportunity for a

hearing on the motion. 31 U.S.C. 3730(c)(2)(A).

The question presented on appeal is whether the district

court, having provided Berg with notice and an opportunity for a

hearing under section 3730(c)(2)(A), properly dismissed this

False Claims Act suit at the request of the United States.

STATUTES AND REGULATIONS

The relevant statutory and regulatory provisions are

reproduced in the addendum to this brief.

STATEMENT OF THE CASE

Appellant Philip Berg, proceeding pro se, brought suit in

the name of the United States against President Obama under the

False Claims Act, 31 U.S.C. 3729 et seq., seeking to recover

Obamas Senate salary on the theory that Obama had fraudulently

represented that he was a United States citizen as required of

Senators under Article I, Section 3. Doc. #1, at 3-4 (Complaint

6-10). In addition to seeking monetary relief, Bergs

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complaint urged that the Attorney General avail himself of all

investigative tools on an expedited basis and obtain as quickly

as possible various documents related to President Obamas place

of birth and citizenship. Doc. #1, at 4-5 (Complaint 12).

The United States sought to dismiss the suit pursuant to

31 U.S.C. 3730(c)(2)(A), which provides that [t]he Government

may dismiss [a False Claims Act] action notwithstanding the

objections of the person initiating the action if the person has

been notified by the Government of the filing of the motion and

the court has provided the person with an opportunity for a

hearing on the motion. Doc. #9, at 1-3. The district court

held a hearing on the motion on June 9, 2009, and dismissed the

suit that same day. Berg moved for reconsideration on June 22,

which the court denied on September 21. Berg timely appealed.

STATEMENT OF THE FACTS

A. Statutory and Regulatory Background.

The False Claims Act, 31 U.S.C. 3729 et seq., is the

United States primary tool to recover for fraud against the

government. The Act prohibits persons from knowingly

present[ing], or caus[ing] to be presented, a false or fraudulent

claim for payment or approval to the federal government or

certain recipients of federal funds, 31 U.S.C. 3729(a)(1)(A),

(b)(2), as well as from engaging in related deceptive practices,

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31 U.S.C. 3729(a)(1)(B)-(G). Any person who violates the1

False Claims Act is liable to the United States Government for a

civil penalty . . . plus 3 times the amount of damages which the

Government sustains. 31 U.S.C. 3729(a)(1). In certain

circumstances, such persons may also be subject to criminal

liability, including a fine and up to five years imprisonment.

See 18 U.S.C. 287, 1001.

Actions under the False Claims Act may be brought either by

the Attorney General, or by a private person (a relator) in the

name of the United States (a qui tam suit). 31 U.S.C.2

3730(a), (b)(1). If a relator initiates a qui tam suit, the

action is brought for the [relator] and for the United States

Government . . . . in the name of the Government. 31 U.S.C.

3730(b)(1). In such a circumstance, a qui tam relator is, in

effect, suing as a partial assignee of the United States, Vt.

Agency of Natural Res., 529 U.S. at 773 n.4 (emphasis omitted),

and any proceeds recovered are divided between the government and

the relator, 31 U.S.C. 3730(d).

After Berg brought this lawsuit, Congress enacted the Fraud1

Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, sec. 4,123 Stat. 1617, 1621-25, which amended the False Claims Act in avariety of respects. None of those amendments is material to the

issues presented in this appeal. This briefs references are tothe current version of the False Claims Act, as amended.

Qui tam is short for the Latin phrase qui tam pro domino2

rege quam pro se ipso in hac parte sequitur, which means whopursues this action on our Lord the Kings behalf as well as hisown. The phrase dates from at least the time of Blackstone.Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529U.S. 765, 768 n.1 (2000).

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When a private relator initiates a False Claims Act suit,

the United States must elect whether to intervene and prosecute

the action or decline and allow the relator to proceed with the

suit. 31 U.S.C. 3730(b)(4). If the government intervenes, it

assumes primary responsibility for prosecuting the action; the

relator may continue to participate in the litigation subject to

certain limits. 31 U.S.C. 3730(c)(1)-(2). If the government

declines to intervene, the relator has the right to proceed with

the action, 31 U.S.C. 3730(c)(3), subject to several

limitations designed to ensure that the United States retains

ultimate control over the suit. The relator may not dismiss the

action without the written consent of the Attorney General.

31 U.S.C. 3730(b)(1). The court may stay discovery in the

action if it would interfere with the Governments investigation

or prosecution of another matter. 31 U.S.C. 3730(c)(4). And

the government retains the option to intervene at a later date

upon a showing of good cause. 31 U.S.C. 3730(c)(3).

The United States also retains the authority to settle or

dismiss the case notwithstanding the relators objection. The

Government may settle the action with the defendant

notwithstanding the objections of the person initiating the

action if the court determines, after a hearing, that the

proposed settlement is fair, adequate, and reasonable under all

the circumstances. 31 U.S.C. 3730(c)(2)(B). The Government

may dismiss the action notwithstanding the objections of the

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person initiating the action if the person has been notified by

the Government of the filing of the motion and the court has

provided the person with an opportunity for a hearing on the

motion. 31 U.S.C. 3730(c)(2)(A).

B. Facts and Prior Proceedings.

Three days after the 2008 Presidential election, Philip

Berg, acting pro se, filed a False Claims Act suit in the name of

the United States against Barack Obama. Berg alleged that Obama

had fraudulently represented that he met the Senate citizenship

requirements of Article I, Section 3, and had accordingly

obtained his Senate salary in violation of the False Claims Act.

Doc. #1, at 3-4 (Complaint 6-10).

The United States sought to dismiss the suit pursuant to

31 U.S.C. 3730(c)(2)(A). The government noted that Berg had

made similar allegations in other proceedings, which the courts

had rejected. Doc. #9, at 2 (citing cases). The United States

explained that it had reviewed the relators allegations,

determined that they lack merit, and concluded that they

therefore should not be pursued on the United States behalf

against its sitting President. Id. The government requested

that the relator be afforded an opportunity for a hearing if he

so requests and this action then be dismissed. Doc. #9, at 3.

Berg sought a hearing and opposed dismissal, contending that

his allegations were meritorious; that the United States could

not dismiss a qui tam suit unless the decision to do so bore a

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rational relation to a valid purpose, which the government had

failed to establish; and that he was entitled to discovery into

the governments decision to dismiss. Doc. #10, at 1-2; Doc.

#10-1, at 6-21.

The district court held a hearing, and dismissed the suit on

June 9, 2009 pursuant to 31 U.S.C. 3730(c)(2)(A). App. 3.

Berg moved for reconsideration, arguing primarily that because

that the Attorney General had been appointed by President Obama

and reports directly to President Obama, the Department of

Justice was precluded from litigating the suit for the United

States due to a conflict of interest. Doc. #17, at 19. The

court denied the motion, noting that the United States typically

possesses an unfettered right to dismiss a qui tam action

under 31 U.S.C. 3730(c)(2)(A), and that the government is not

required to justify its reasons for such a dismissal. App. 7, 11

(quoting United States ex rel. Hoyte v. Am. Natl Red Cross, 518

F.3d 61, 65 (D.C. Cir. 2008)). The court held that the conflict-

of-interest laws cited by Berg did not preclude the Department of

Justice from representing the United States in the present suit,

and that Bergs speculation regarding a conflict of interest on

the part of the Attorney General was without merit. App. 10.

SUMMARY OF THE ARGUMENT

The district court correctly declined to second-guess the

governments decision to dismiss this False Claims Act suit,

brought by Berg in the name of the United States. The False

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Claims Act provides that the government may dismiss such a suit

notwithstanding the objections of the person initiating the

action if the person has been notified by the Government of the

filing of the motion and the court has provided the person with

an opportunity for a hearing on the motion. 31 U.S.C.

3730(c)(2)(A). As this Court has explained, the government

accordingly possesses what amounts to an unfettered right to

dismiss a qui tam action under the False Claims Act. United

States ex rel. Hoyte v. Am. Natl Red Cross, 518 F.3d 61, 65

(D.C. Cir. 2008) (quotation marks omitted). Where, as here, a

relator fails after a hearing to persuade the United States to

proceed with a False Claims Act suit, the governments decision

to dismiss the case, based on its own assessment, is not

reviewable in the district court or this court. Id. Bergs

contrary arguments are without merit.

STANDARD OF REVIEW

The district courts determination that the dismissal of a

False Claims Act suit lies within the discretion of the United

States, and the courts rejection of Bergs conflict-of-interest

allegations as facially inadequate, are legal conclusions that

this Court reviews de novo. See, e.g., Cummings v. Dept of

Navy, 279 F.3d 1051, 1053 (D.C. Cir. 2002).

ARGUMENT

The False Claims Act provides that once a relator has

received notice and opportunity for a hearing, [t]he Government

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may dismiss [a qui tam] action notwithstanding the objections of

the relator. 31 U.S.C. 3730(c)(2)(A). In accordance with the

statute, this Court has consistently held that the United States

discretion to dismiss a qui tam action is virtually

unfettered. United States ex rel. Hoyte v. Am. Natl Red

Cross, 518 F.3d 61, 65 (D.C. Cir. 2008) (quoting Swift v. United

States, 318 F.3d 250, 252 (D.C. Cir. 2003)).

That conclusion flows not only from the text of section

3730(c)(2)(A), but from the constitutional separation of powers,

the Executive Branchs broad discretion over whether to prosecute

cases, and a plaintiffs traditional authority under Fed. R. Civ.

P. 41(a)(1)(A)(i) to voluntarily dismiss an action without

seeking permission of the court. Id. The False Claims Act

mandates that a relator be provided notice and a hearing to give

her a formal opportunity to convince the government not to end

the case. Id. (quoting Swift, 318 F.3d at 253). Should a

relator fail in that endeavor, however, the United States

decision to dismiss the case, based on its own assessment, is

not reviewable in the district court or this court. Id.

Berg offers no good reason to set aside that rule here. He

contends (Br. 7) that the governments dismissal of a qui tam

suit must meet the rational relation standard of United

States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp.,

151 F.3d 1139 (9th Cir. 1998), under which the Government must

initially show that dismissal is rationally related to a valid

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purpose, after which the relator bears the burden to show the

decision to dismiss is fraudulent, illegal, or arbitrary and

capricious. Hoyte, 518 F.3d at 65 n.4 (quoting Swift, 318 F.3d

at 252). But this Court has explicitly rejected such a standard

of review, explaining that it is inconsistent with both the text

of section 3730(c)(2)(A) and with the Executives historical

prerogative to decide which cases should go forward in the name

of the United States. Swift, 318 F.3d at 253.3

Even if the government were required to establish a valid

reason for its dismissal, it did so here. The government

explained that Berg had made similar allegations in other

proceedings, which the courts had rejected, and that it had

reviewed the relators allegations, determined that they lack

merit, and concluded that they therefore should not be pursued on

the United States behalf against its sitting President. Doc.

#9, at 2 (citing Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa.

2008), affd, 586 F.3d 234 (3d Cir. 2009); Hollister v. Soetoro,

601 F. Supp. 2d 179 (D.D.C. 2009), appeal docketed, Nos. 09-5080,

09-5161 (D.C. Cir. Mar. 18 & Apr. 30, 2009) (consol.)). That

reasoning easily satisfie[s] a rational relation test, and Berg

As the district court noted, this Court has left open3

whether the governments dismissal authority may be more limitedin instances of fraud on the court. App. 7 n.1 (citing Hoyte,518 F.3d at 65). The court explained, however, that Berg hasneither argued that the governments actions fall within thepossible exception of fraud on the court, nor presented supportshowing that his disagreement with the government regarding themerits of his claim could be considered fraud on the court,rendering any such exception inapplicable. App. 8 n.1.

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has offered no evidence to contradict the governments

explanation for its dismissal. Swift, 318 F.3d at 254.

There is likewise no merit to Bergs contention (Br. 7, 18-

20) that he is entitled to the Discovery the Government used in

their determination to dismiss the action. As this Court

explained in Swift, the Supreme Court has stated that a party is

not entitled to discovery of information relating to

prosecutorial decisions absent a substantial threshold showing.

318 F.3d at 254 (citing United States v. Armstrong, 517 U.S. 456,

463 (1996)). Berg has made no such showing here.

Bergs allegations of a huge Conflict-Of-Interest (Br. 20-

27) on the part of the Department of Justice are equally

unfounded. As the district court explained, the conflict-of-

interest provisions on which Berg relies do not prohibit the

Department of Justice from representing the United States in this

qui tam suit, nor do they afford Berg any enforceable rights that

would entitle him to vacate the dismissal of the suit. See App.

10-11 (citing Hunter v. Dist. of Columbia, 384 F. Supp. 2d 257,

260 n.1 (D.D.C. 2005)). 18 U.S.C. 205, which prohibits federal

employees from acting as agents or attorneys in certain

proceedings where the United States is a party or otherwise has a

direct interest, does not apply to actions taken by a federal

employee in the proper discharge of his official duties. That

exception indisputably encompasses legal representation of the

United States by Justice Department employees. See App. 10.

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Nor does this case implicate the bar on federal employees

participation in cases where they may possess a financial

interest. See 18 U.S.C. 208; 5 C.F.R. 2635.502. Berg posits

(Br. 27) that the Attorney General would be at great risk of

losing his position, which is a financial interest, if this qui

tam suit were allowed to proceed--and that this accordingly

disqualifies the entire Department of Justice from representing

the United States in this litigation. But as the district court

recognized, Berg provides absolutely no legal support for the

notion that this speculation can suffice to dislodge Justice

Department attorneys from their duty to represent the United

States in this case. App. 10. Berg does not explain how his

proposed reading of these provisions, which would preclude the

Department of Justice from representing the President in any

legal proceeding, can sensibly be squared with their language or

purpose.

Berg received an opportunity to convince the government to

pursue a False Claims Act suit in the United States name against

a sitting President, and failed to persuade the government to do

so. As this Court held in both Swift and Hoyte, a relator such

as Berg is entitled to no more under the False Claims Act. The

district court properly declined to interject itself into the

governments decision to dismiss the case, and its judgment

should be affirmed.

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CONCLUSION

For the foregoing reasons, the district courts judgment

should be affirmed.

Respectfully submitted,

TONY WESTAssistant Attorney General

RONALD C. MACHEN JR.United States Attorney

MARK B. STERN(202) 514-5089/s/ Eric Fleisig-GreeneERIC FLEISIG-GREENE

(202) 514-4815Attorneys, Appellate StaffCivil Division, Room 7214U.S. Department of Justice950 Pennsylvania Ave., N.W.Washington, DC [email protected]

MARCH 2010

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of

Appellate Procedure, I hereby certify that this brief complies

with the type-volume limitation in Rule 32(a)(7)(B). The

foregoing brief is presented in monospaced Courier New font of no

more than 10.5 characters per inch. The brief (from the start of

its Statement Of Jurisdiction through the end of its Conclusion)

contains 2,884 words according to the count of this offices word

processing system.




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CERTIFICATE OF SERVICE

I certify that on March 19, 2010, I filed the foregoing

brief with the Court by using the appellate CM/ECF system, and by

causing eight paper copies to be delivered to the Court by hand

delivery within two business days. I further certify that the

following pro se litigant is a registered CM/ECF user and that

service will be accomplished through the appellate CM/ECF system:

Philip J. Berg555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531

(610) [email protected]




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ADDENDUM



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INDEX TO ADDENDUM

Page

31 U.S.C.A. 3730. . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C.A. 205.. . . . . . . . . . . . . . . . . . . . . . . 6

18 U.S.C.A. 208.. . . . . . . . . . . . . . . . . . . . . . 10

5 C.F.R. 2635.502.. . . . . . . . . . . . . . . . . . . . . 13



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Effective:[See Notes]

United States Code Annotated Currentness

Title 31. Money and Finance (Refs & Annos)

Subtitle III. Financial Management

Chapter 37. Claims (Refs & Annos)

Subchapter III. Claims Against the United States Government (Refs & Annos)

3730. Civil actions for false claims

(a) Responsibilities of the Attorney General.--The Attorney General diligently shall investigate a violation un-

der section 3729. If the Attorney General finds that a person has violated or is violating section 3729, the Attor-

ney General may bring a civil action under this section against the person.

(b) Actions by private persons.--(1) A person may bring a civil action for a violation of section 3729 for the

person and for the United States Government. The action shall be brought in the name of the Government. The

action may be dismissed only if the court and the Attorney General give written consent to the dismissal and

their reasons for consenting.

(2) A copy of the complaint and written disclosure of substantially all material evidence and information the per-

son possesses shall be served on the Government pursuant to Rule 4(d)(4) of the Federal Rules of Civil Proced -

ure. [FN1] The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be

served on the defendant until the court so orders. The Government may elect to intervene and proceed with the

action within 60 days after it receives both the complaint and the material evidence and information.

(3) The Government may, for good cause shown, move the court for extensions of the time during which the

complaint remains under seal under paragraph (2). Any such motions may be supported by affidavits or other

submissions in camera. The defendant shall not be required to respond to any complaint filed under this section

until 20 days after the complaint is unsealed and served upon the defendant pursuant to Rule 4 of the Federal

Rules of Civil Procedure.

(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government

shall--

(A) proceed with the action, in which case the action shall be conducted by the Government; or

(B) notify the court that it declines to take over the action, in which case the person bringing the action shall

have the right to conduct the action.

(5) When a person brings an action under this subsection, no person other than the Government may intervene or

31 U.S.C.A. 3730 Page 1

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bring a related action based on the facts underlying the pending action.

(c) Rights of the parties to qui tam actions.--(1) If the Government proceeds with the action, it shall have the

primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the ac-tion. Such person shall have the right to continue as a party to the action, subject to the limitations set forth in

paragraph (2).

(2)(A) The Government may dismiss the action notwithstanding the objections of the person initiating the action

if the person has been notified by the Government of the filing of the motion and the court has provided the per-

son with an opportunity for a hearing on the motion.

(B) The Government may settle the action with the defendant notwithstanding the objections of the person initi-

ating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reas-

onable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.

(C) Upon a showing by the Government that unrestricted participation during the course of the litigation by the

person initiating the action would interfere with or unduly delay the Government's prosecution of the case, or

would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limita-

tions on the person's participation, such as--

(i) limiting the number of witnesses the person may call;

(ii) limiting the length of the testimony of such witnesses;

(iii) limiting the person's cross-examination of witnesses; or

(iv) otherwise limiting the participation by the person in the litigation.

(D) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the

person initiating the action would be for purposes of harassment or would cause the defendant undue burden or

unnecessary expense, the court may limit the participation by the person in the litigation.

(3) If the Government elects not to proceed with the action, the person who initiated the action shall have the

right to conduct the action. If the Government so requests, it shall be served with copies of all pleadings filed in

the action and shall be supplied with copies of all deposition transcripts (at the Government's expense). When a

person proceeds with the action, the court, without limiting the status and rights of the person initiating the ac-

tion, may nevertheless permit the Government to intervene at a later date upon a showing of good cause.

(4) Whether or not the Government proceeds with the action, upon a showing by the Government that certain ac-

tions of discovery by the person initiating the action would interfere with the Government's investigation or pro-

secution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period

of not more than 60 days. Such a showing shall be conducted in camera. The court may extend the 60-day period

31 U.S.C.A. 3730 Page 2




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27/40

Department of Justice.

(4) If the Government does not proceed with the action and the person bringing the action conducts the action,

the court may award to the defendant its reasonable attorneys' fees and expenses if the defendant prevails in theaction and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexa-

tious, or brought primarily for purposes of harassment.

(e) Certain actions barred.--(1) No court shall have jurisdiction over an action brought by a former or present

member of the armed forces under subsection (b) of this section against a member of the armed forces arising

out of such person's service in the armed forces.

(2)(A) No court shall have jurisdiction over an action brought under subsection (b) against a Member of Con-

gress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or in-

formation known to the Government when the action was brought.

(B) For purposes of this paragraph, senior executive branch official means any officer or employee listed in

paragraphs (1) through (8) of section 101(f) of the Ethics in Government Act of 1978 (5 U.S.C. App.).

(3) In no event may a person bring an action under subsection (b) which is based upon allegations or transac-

tions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the Gov-

ernment is already a party.

(4)(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of al-

legations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or

Government [FN2] Accounting Office report, hearing, audit, or investigation, or from the news media, unless

the action is brought by the Attorney General or the person bringing the action is an original source of the in-

formation.

(B) For purposes of this paragraph, original source means an individual who has direct and independent know-

ledge of the information on which the allegations are based and has voluntarily provided the information to the

Government before filing an action under this section which is based on the information.

(f) Government not liable for certain expenses.--The Government is not liable for expenses which a person in-

curs in bringing an action under this section.

(g) Fees and expenses to prevailing defendant.--In civil actions brought under this section by the United

States, the provisions ofsection 2412(d) of title 28 shall apply.

(h) Relief from retaliatory actions.--

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(1) In general.--Any employee, contractor, or agent shall be entitled to all relief necessary to make that em-

ployee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended,

threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment

because of lawful acts done by the employee, contractor, or agent on behalf of the employee, contractor, or

agent or associated others in furtherance of other efforts to stop 1 or more violations of this subchapter.

(2) Relief.--Relief under paragraph (1) shall include reinstatement with the same seniority status that employ-

ee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on

the back pay, and compensation for any special damages sustained as a result of the discrimination, including

litigation costs and reasonable attorneys' fees. An action under this subsection may be brought in the appropri-

ate district court of the United States for the relief provided in this subsection.

CREDIT(S)

(Pub.L. 97-258, Sept. 13, 1982, 96 Stat. 978; Pub.L. 99-562, 3, 4, Oct. 27, 1986, 100 Stat. 3154, 3157; Pub.L.

100-700, 9, Nov. 19, 1988, 102 Stat. 4638; Pub.L. 101-280, 10(a), May 4, 1990, 104 Stat. 162; Pub.L.103-272, 4(f)(1)(P), July 5, 1994, 108 Stat. 1362; Pub.L. 111-21, 4(d), May 20, 2009, 123 Stat. 1624.)

[FN1] See, now, Rule 4(i) of the Federal Rules of Civil Procedure.

[FN2] So in original. Probably should be General.

2009 Acts. Except as otherwise provided under Pub.L. 111-21, 4(f)(1), (2), amendments made by Pub.L.

111-21, 4, shall take effect on May 20, 2009, and shall apply to conduct on or after May 20, 2009, see Pub.L.

111-21, 4(f), set out as a note under 31 U.S.C.A. 3729.

Current through P.L. 111-144 approved 3-2-10

Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT

31 U.S.C.A. 3730 Page 5


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Effective: November 2, 2002


Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)

Chapter 11. Bribery, Graft, and Conflicts of Interest (Refs & Annos)

205. Activities of officers and employees in claims against and other matters affecting the

Government

(a) Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of

the Government or in any agency of the United States, other than in the proper discharge of his official duties--

(1) acts as agent or attorney for prosecuting any claim against the United States, or receives any gratuity, or

any share of or interest in any such claim, in consideration of assistance in the prosecution of such claim; or

(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or civil,

military, or naval commission in connection with any covered matter in which the United States is a party or

has a direct and substantial interest;

shall be subject to the penalties set forth in section 216 of this title.

(b) Whoever, being an officer or employee of the District of Columbia or an officer or employee of the Office of

the United States Attorney for the District of Columbia, otherwise than in the proper discharge of official duties-

-

(1) acts as agent or attorney for prosecuting any claim against the District of Columbia, or receives any gratu-

ity, or any share of or interest in any such claim in consideration of assistance in the prosecution of such

claim; or

(2) acts as agent or attorney for anyone before any department, agency, court, officer, or commission in con-

nection with any covered matter in which the District of Columbia is a party or has a direct and substantial in-

terest;

shall be subject to the penalties set forth in section 216 of this title.

(c) A special Government employee shall be subject to subsections (a) and (b) only in relation to a covered mat-

18 U.S.C.A. 205 Page 1


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ter involving a specific party or parties--

(1) in which he has at any time participated personally and substantially as a Government employee or special

Government employee through decision, approval, disapproval, recommendation, the rendering of advice, in-vestigation, or otherwise; or

(2) which is pending in the department or agency of the Government in which he is serving.

Paragraph (2) shall not apply in the case of a special Government employee who has served in such department

or agency no more than sixty days during the immediately preceding period of three hundred and sixty-five con-

secutive days.

(d)(1) Nothing in subsection (a) or (b) prevents an officer or employee, if not inconsistent with the faithful per-

formance of that officer's or employee's duties, from acting without compensation as agent or attorney for, orotherwise representing--

(A) any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in

connection with those proceedings; or

(B) except as provided in paragraph (2), any cooperative, voluntary, professional, recreational, or similar or-

ganization or group not established or operated for profit, if a majority of the organization's or group's mem-

bers are current officers or employees of the United States or of the District of Columbia, or their spouses or

dependent children.

(2) Paragraph (1)(B) does not apply with respect to a covered matter that--

(A) is a claim under subsection (a)(1) or (b)(1);

(B) is a judicial or administrative proceeding where the organization or group is a party; or

(C) involves a grant, contract, or other agreement (including a request for any such grant, contract, or agree-

ment) providing for the disbursement of Federal funds to the organization or group.

(e) Nothing in subsection (a) or (b) prevents an officer or employee, including a special Government employee,

from acting, with or without compensation, as agent or attorney for, or otherwise representing, his parents,

spouse, child, or any person for whom, or for any estate for which, he is serving as guardian, executor, adminis-

trator, trustee, or other personal fiduciary except--

(1) in those matters in which he has participated personally and substantially as a Government employee or

18 U.S.C.A. 205 Page 2




31/40

special Government employee through decision, approval, disapproval, recommendation, the rendering of ad-

vice, investigation, or otherwise, or

(2) in those matters which are the subject of his official responsibility,

subject to approval by the Government official responsible for appointment to his position.

(f) Nothing in subsection (a) or (b) prevents a special Government employee from acting as agent or attorney for

another person in the performance of work under a grant by, or a contract with or for the benefit of, the United

States if the head of the department or agency concerned with the grant or contract certifies in writing that the

national interest so requires and publishes such certification in the Federal Register.

(g) Nothing in this section prevents an officer or employee from giving testimony under oath or from making

statements required to be made under penalty for perjury or contempt.

(h) For the purpose of this section, the term covered matter means any judicial or other proceeding, applica-

tion, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation,

arrest, or other particular matter.

(i) Nothing in this section prevents an employee from acting pursuant to--

(1) chapter 71 of title 5;

(2) section 1004 or chapter 12 of title 39;

(3) section 3 of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831b);

(4) chapter 10 of title I of the Foreign Service Act of 1980 (22 U.S.C. 4104 et seq.); or

(5) any provision of any other Federal or District of Columbia law that authorizes labor-management relations

between an agency or instrumentality of the United States or the District of Columbia and any labor organiza-

tion that represents its employees.

CREDIT(S)

(Added Pub.L. 87-849, 1(a), Oct. 23, 1962, 76 Stat. 1122, and amended Pub.L. 101-194, Title IV, 404, Nov.

30, 1989, 103 Stat. 1750; Pub.L. 101-280, 5(c), May 4, 1990, 104 Stat. 159; Pub.L. 104-177, 2, Aug. 6,

1996, 110 Stat. 1563; Pub.L. 107-273, Div. B, Title IV, 4002(a)(9), Nov. 2, 2002, 116 Stat. 1807.)

18 U.S.C.A. 205 Page 3


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END OF DOCUMENT

18 U.S.C.A. 205 Page 4




33/40

Effective:[See Text Amendments]


Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)

Chapter 11. Bribery, Graft, and Conflicts of Interest (Refs & Annos)

208. Acts affecting a personal financial interest

(a) Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch

of the United States Government, or of any independent agency of the United States, a Federal Reserve bank dir-

ector, officer, or employee, or an officer or employee of the District of Columbia, including a special Govern-

ment employee, participates personally and substantially as a Government officer or employee, through de-cision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial

or other proceeding, application, request for a ruling or other determination, contract, claim, controversy,

charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child,

general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or

any person or organization with whom he is negotiating or has any arrangement concerning prospective employ-

ment, has a financial interest--

Shall be subject to the penalties set forth in section 216 of this title.

(b) Subsection (a) shall not apply--

(1) if the officer or employee first advises the Government official responsible for appointment to his or her

position of the nature and circumstances of the judicial or other proceeding, application, request for a ruling or

other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter and

makes full disclosure of the financial interest and receives in advance a written determination made by such

official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which

the Government may expect from such officer or employee;

(2) if, by regulation issued by the Director of the Office of Government Ethics, applicable to all or a portion of

all officers and employees covered by this section, and published in the Federal Register, the financial interest

has been exempted from the requirements of subsection (a) as being too remote or too inconsequential to af-

fect the integrity of the services of the Government officers or employees to which such regulation applies;

(3) in the case of a special Government employee serving on an advisory committee within the meaning of the

Federal Advisory Committee Act (including an individual being considered for an appointment to such a posi-

tion), the official responsible for the employee's appointment, after review of the financial disclosure report

18 U.S.C.A. 208 Page 1


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filed by the individual pursuant to the Ethics in Government Act of 1978, certifies in writing that the need for

the individual's services outweighs the potential for a conflict of interest created by the financial interest in-

volved; or

(4) if the financial interest that would be affected by the particular matter involved is that resulting solely from

the interest of the officer or employee, or his or her spouse or minor child, in birthrights--

(A) in an Indian tribe, band, nation, or other organized group or community, including any Alaska Native

village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which

is recognized as eligible for the special programs and services provided by the United States to Indians be-

cause of their status as Indians,

(B) in an Indian allotment the title to which is held in trust by the United States or which is inalienable by

the allottee without the consent of the United States, or

(C) in an Indian claims fund held in trust or administered by the United States,

if the particular matter does not involve the Indian allotment or claims fund or the Indian tribe, band, nation,

organized group or community, or Alaska Native village corporation as a specific party or parties.

(c)(1) For the purpose of paragraph (1) of subsection (b), in the case of class A and B directors of Federal Re-

serve banks, the Board of Governors of the Federal Reserve System shall be deemed to be the Government offi-

cial responsible for appointment.

(2) The potential availability of an exemption under any particular paragraph of subsection (b) does not preclude

an exemption being granted pursuant to another paragraph of subsection (b).

(d)(1) Upon request, a copy of any determination granting an exemption under subsection (b)(1) or (b)(3) shall

be made available to the public by the agency granting the exemption pursuant to the procedures set forth in sec-

tion 105 of the Ethics in Government Act of 1978. In making such determination available, the agency may

withhold from disclosure any information contained in the determination that would be exempt from disclosure

under section 552 of title 5. For purposes of determinations under subsection (b)(3), the information describing

each financial interest shall be no more extensive than that required of the individual in his or her financial dis-

closure report under the Ethics in Government Act of 1978.

(2) The Office of Government Ethics, after consultation with the Attorney General, shall issue uniform regula-

tions for the issuance of waivers and exemptions under subsection (b) which shall--

(A) list and describe exemptions; and

18 U.S.C.A. 208 Page 2


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(B) provide guidance with respect to the types of interests that are not so substantial as to be deemed likely to

affect the integrity of the services the Government may expect from the employee.

CREDIT(S)

(Added Pub.L. 87-849, 1(a), Oct. 23, 1962, 76 Stat. 1124, and amended Pub.L. 95-188, Title II, 205, Nov.

16, 1977, 91 Stat. 1388; Pub.L. 101-194, Title IV, 405, Nov. 30, 1989, 103 Stat. 1751; Pub.L. 101-280, 5(e),

May 4, 1990, 104 Stat. 159; Pub.L. 103-322, Title XXXIII, 330002(b), 330008(6), Sept. 13, 1994, 108 Stat.

2140, 2143.)



END OF DOCUMENT

18 U.S.C.A. 208 Page 3


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Effective:[See Text Amendments]

Code of Federal Regulations Currentness

Title 5. Administrative Personnel

Chapter XVI. Office of Government Ethics

Subchapter B. Government Ethics

Part 2635. Standards of Ethical Conduct

for Employees of the Executive Branch

(Refs & Annos)

Subpart E. Impartiality in Performing

Official Duties

2635.502 Personal and business

relationships.

(a) Consideration of appearances by the employee.

Where an employee knows that a particular matter

involving specific parties is likely to have a direct

and predictable effect on the financial interest of a

member of his household, or knows that a person

with whom he has a covered relationship is or rep-

resents a party to such matter, and where the em-

ployee determines that the circumstances would

cause a reasonable person with knowledge of therelevant facts to question his impartiality in the

matter, the employee should not participate in the

matter unless he has informed the agency designee

of the appearance problem and received authoriza-

tion from the agency designee in accordance with

paragraph (d) of this section.

(1) In considering whether a relationship would

cause a reasonable person to question his im-

partiality, an employee may seek the assistance

of his supervisor, an agency ethics official orthe agency designee.

(2) An employee who is concerned that circum-

stances other than those specifically described

in this section would raise a question regarding

his impartiality should use the process de-

scribed in this section to determine whether he

should or should not participate in a particular

matter.

(b) Definitions. For purposes of this section:

(1) An employee has a covered relationship

with:

(i) A person, other than a prospective employer

described in 2635.603(c), with whom the em-

ployee has or seeks a business, contractual or

other financial relationship that involves other

than a routine consumer transaction;

Note: An employee who is seeking employment

within the meaning of 2635.603 shall comply

with subpart F of this part rather than with this sec-

tion.

(ii) A person who is a member of the employ-

ee's household, or who is a relative with whomthe employee has a close personal relationship;

(iii) A person for whom the employee's spouse,

parent or dependent child is, to the employee's

knowledge, serving or seeking to serve as an

officer, director, trustee, general partner, agent,

attorney, consultant, contractor or employee;

(iv) Any person for whom the employee has,

within the last year, served as officer, director,

trustee, general partner, agent, attorney, con-

sultant, contractor or employee; or

(v) An organization, other than a political party

described in 26 U.S.C. 527(e), in which the

employee is an active participant. Participation

5 C.F.R. 2635.502 Page 1


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is active if, for example, it involves service as

an official of the organization or in a capacity

similar to that of a committee or subcommittee

chairperson or spokesperson, or participation in

directing the activities of the organization. In

other cases, significant time devoted to promot-

ing specific programs of the organization, in-

cluding coordination of fundraising efforts, is

an indication of active participation. Payment

of dues or the donation or solicitation of finan-

cial support does not, in itself, constitute active

participation.

Note: Nothing in this section shall be construed

to suggest that an employee should not participate

in a matter because of his political, religious or

moral views.

(2) Direct and predictable effect has the mean-

ing set forth in 2635.402(b)(1).

(3) Particular matter involving specific parties

has the meaning set forth in 2637.102(a)(7)

of this chapter.

Example 1: An employee of the General Services

Administration has made an offer to purchase a res-

taurant owned by a local developer. The developer

has submitted an offer in response to a GSA solicit-

ation for lease of office space. Under the circum-

stances, she would be correct in concluding that a

reasonable person would be likely to question her

impartiality if she were to participate in evaluating

that developer's or its competitor's lease proposal.

Example 2: An employee of the Department of

Labor is providing technical assistance in drafting

occupational safety and health legislation that will

affect all employers of five or more persons. His

wife is employed as an administrative assistant by a

large corporation that will incur additional costs if

the proposed legislation is enacted. Because the le-

gislation is not a particular matter involving specif-

ic parties, the employee may continue to work on

the legislation and need not be concerned that his

wife's employment with an affected corporation

would raise a question concerning his impartiality.

Example 3: An employee of the Defense Logist-

ics Agency who has responsibilities for testing

avionics being produced by an Air Force contractor

has just learned that his sister-in-law has accepted

employment as an engineer with the contractor's

parent corporation. Where the parent corporation is

a conglomerate, the employee could reasonably

conclude that, under the circumstances, a reason-

able person would not be likely to question his im-

partiality if he were to continue to perform his test

and evaluation responsibilities.

Example 4: An engineer has just resigned from

her position as vice president of an electronics com-

pany in order to accept employment with the Feder-

al Aviation Administration in a position involving

procurement responsibilities. Although the employ-

ee did not receive an extraordinary payment in con-

nection with her resignation and has severed all fin-

ancial ties with the firm, under the circumstances

she would be correct in concluding that her former

service as an officer of the company would be

likely to cause a reasonable person to question her

impartiality if she were to participate in the admin-

istration of a DOT contract for which the firm is a

first-tier subcontractor.

Example 5: An employee of the Internal Revenue

Service is a member of a private organization

whose purpose is to restore a Victorian-era railroad

station and she chairs its annual fundraising drive.

Under the circumstances, the employee would be

correct in concluding that her active membership in

the organization would be likely to cause a reason-

able person to question her impartiality if she were

to participate in an IRS determination regarding the

tax-exempt status of the organization.

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(c) Determination by agency designee. Where he

has information concerning a potential appearance

problem arising from the financial interest of a

member of the employee's household in a particular

matter involving specific parties, or from the role in

such matter of a person with whom the employee

has a covered relationship, the agency designee

may make an independent determination as to

whether a reasonable person with knowledge of the

relevant facts would be likely to question the em-

ployee's impartiality in the matter. Ordinarily, the

agency designee's determination will be initiated by

information provided by the employee pursuant to

paragraph (a) of this section. However, at any time,

including after the employee has disqualified him-

self from participation in a matter pursuant to para-graph (e) of this section, the agency designee may

make this determination on his own initiative or

when requested by the employee's supervisor or any

other person responsible for the employee's assign-

ment.

(1) If the agency designee determines that the

employee's impartiality is likely to be ques-

tioned, he shall then determine, in accordance

with paragraph (d) of this section, whether the

employee should be authorized to participate inthe matter. Where the agency designee determ-

ines that the employee's participation should

not be authorized, the employee will be dis-

qualified from participation in the matter in ac-

cordance with paragraph (e) of this section.

(2) If the agency designee determines that the

employee's impartiality is not likely to be ques-

tioned, he may advise the employee, including

an employee who has reached a contrary con-

clusion under paragraph (a) of this section, thatthe employee's participation in the matter

would be proper.

(d) Authorization by agency designee. Where an

employee's participation in a particular matter in-

volving specific parties would not violate 18 U.S.C.

208(a), but would raise a question in the mind of a

reasonable person about his impartiality, the agency

designee may authorize the employee to participate

in the matter based on a determination, made in

light of all relevant circumstances, that the interest

of the Government in the employee's participation

outweighs the concern that a reasonable person may

question the integrity of the agency's programs and

operations. Factors which may be taken into con-

sideration include:

(1) The nature of the relationship involved;

(2) The effect that resolution of the matterwould have upon the financial interests of the

person involved in the relationship;

(3) The nature and importance of the employ-

ee's role in the matter, including the extent to

which the employee is called upon to exercise

discretion in the matter;

(4) The sensitivity of the matter;

(5) The difficulty of reassigning the matter to

another employee;

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BERG v OBAMA (FCA) - APPEAL - Appellee Brief - Transport Room

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