United States v. Chevron, U.S.A., Inc.

with whom Judge Kozinski joins, concurring in the result:

Although I concur in the result reached by the majority, I arrive at that destination by a different analytical route, one that does not depend on the meaning in the statute of the word “voluntary.”

Judge Hall is on target when she quotes Wang for the proposition that “[t]he paradigm qui tam plaintiff is the ‘whistleblowing insider.’ ” Wang ex rel United States v FMC Corp., 975 F.2d 1412, 1419 (9th Cir.1992). Based on the record, she is also correct when she observes (1) that “[ljegislative history also suggests that Congress envisioned only this paradigm suit when enacting the current version of the qui tam provisions,” and (2) that this case “defies the paradigm.” But she stops here rather than taking the next logical step which is to reject out of hand Mr. Fine’s claim that the statute can be abused for a fanciful purpose for which it was never intended.

When the provisions of the qui tam statutes are read in conjunction with the complementary provisions of the Inspector General Act, 5 U.S.C. app. 3, § 1 et seq., one concludes that Congress could not have contemplated permitting a current or retired Inspector General…

with whom Circuit Judge REINHARDT joins, dissenting:

I dissent. There is a reason the majority has difficulty finding common ground for its holding that an Inspector General employee cannot be an “original source” for purposes of a qui tam action. Nothing in the False Claims Act or its legislative history suggests that an Inspector General employee may not bring a qui tam action.

To reach its result, the majority makes two assumptions: first, that Congress failed to consider Inspector General employees as possible qui tam relators, and, second, that, if Congress had considered them, it would have excluded Inspector General employees from the operation of the False Claims Act. It is not our role to legislate on behalf of Congress.

In addition, legislative history shows that, in amending the False Claims Act in 1986, Congress sought to encourage people to come forward with information regarding fraud so that it could recover monies lost to the treasury. False Claims Amendments Act of 1986; Senate Judiciary Committee, S.Rep. No. 346, 99th Cong., 2d Sess. 9 (1986), reprinted in 1986 U.S.C.A.A.N. 5266. The 1986 amendments were intended, in part, to encourage government employees…

Separate concurrence by Judge KOZINSKI in which Judge T.G. NELSON joins; separate concurrence by Judge TROTT in which Judge KOZINSKI joins; separate concurrence by Judge HAWKINS in which Judge KOZINSKI joins; • dissent by Judge LEAVY in which Judge REINHARDT joins.

This is a consolidated appeal from the dismissal of two qui tam actions under the False Claims Act. The relator, Harold Fine, is a former employee of the Office of the Inspector General at the U.S. Department of Energy. He left his job and filed these, and several other, qui tam actions. Fine concedes that his actions are based upon publicly disclosed allegations and that he therefore cannot maintain the actions unless he qualifies as an “original source.”

The district court, in separate orders, dismissed both actions for lack of subject matter jurisdiction. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 . On appeal by Fine, a panel of this Court reversed and remanded. 1 A majority of the nonrecused active judges then "voted to rehear the case en banc.

We now affirm both dismissals because we conclude that Fine cannot be an “original source.” To qualify as an original source, one must voluntarily provide…

with whom Judge T.G. Nelson joins, concurring:

I write briefly to comment on the linguistic issue raised by Judge Leavy’s dissent. The majority holds that, for purposes of the False Claims Act, an individual does not act voluntarily if he is legally obligated to take a particular action. In Judge Leavy’s view, an individual can act voluntarily even if he is legally required to do so. Neither view is implausible: Webster’s New International Dictionary (second edition, of course) gives no fewer than eight definitions for “voluntary.” Some are consistent with Judge Leavy’s sense: “1. Proceeding from the will, or from one’s choice or full consent; produced in or by an act of choice_ 4. Of or pertaining to the will; subject to, or regulated by the will_” Id. at 2858. Others support the majority: “2. Unconstrained by interference; unimpelled by another’s influ-ence_ 8. Law. Acting, or done, of one’s own free will, without valuable consideration; acting, or done, without any present legal obligation to do the thing done, or any such obligation that can accrue from the existing state of affairs.... ” Id.

*746 This is not unusual; courts often construe terms with more than one nuance of…

concurrence in which Circuit Judge KOZINSKI joins:

Judge Hall pens a thoughtful opinion and reaches, I believe, an entirely correct result. I would get there via a somewhat different route. This is a case in which we are fundamentally called upon to reconcile two separate Acts of Congress sharing a common purpose: the investigation and reporting of allegations of fraud on the government. The district court should be affirmed because a side by side comparison of these two measures leads inescapably to the conclusion that Congress could not have intended that an auditor in the employ of an Inspector General — whose very job it is to detect and pursue allegations of fraud — should share in the substantial financial rewards intended for those who have no such job.

The policy implications which flow from concluding otherwise are frightening. Agents of the United States who are sworn to gather facts in a fair and neutral manner would, like the small town traffic magistrates of a thankfully bygone era, have a personal financial stake in the outcome of their efforts. Persons whose job it is to discover and report fraud to their supervisors would benefit from down playing the importance…