United States District Court, E.D. Virginia, Alexandria Division
UNITED STATES ex rel. BENJAMIN CARTER, Plaintiff,
HALLIBURTON CO., ET AL., Defendants.
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on qui tam Relator
Benjamin Carter’s motion to supplement the appellate
record pursuant to Federal Rule of Appellate Procedure 10(e).
[Dkt. 141.] For the following reasons, the Court will deny
facts and complex procedural history of this case are
described in full in the Court’s many memorandum
opinions addressing qui tam Relator Benjamin
Carter’s (“Carter”) allegations that
defense contractors submitted false claims to the Government
in violation of the False Claims Act (“FCA”), 31
U.S.C. §§ 3729-3733. That history is repeated here
only to the extent necessary to resolve the present motion.
Court of Appeals for the Fourth Circuit and the United
States Supreme Court remanded Carter’s case for this
Court to determine how to apply the FCA’s first-to-file
to Carter’s timely allegations that Defendants
submitted false claims to the Government. On remand,
Defendants moved to dismiss the case with prejudice, arguing
that the FCA’s first-to-file bar requires dismissal and
the statute of limitations and repose would prevent the
filing of a new lawsuit. Carter responded by requesting leave
to amend, arguing that by amending his complaint he could
avoid the first-to-file bar because no related cases are
careful consideration, the Court concluded that the
first-to-file bar would continue to bar Carter’s
complaint, even if he was granted leave to amend. See
United States ex rel. Carter v. Halliburton
Co., No. 11-cv-602, 2015 WL 7012542, at *13 (E.D. Va.
Nov. 12, 2015) (“[A]n amended complaint does not save a
qui tam suit that was barred when the relator filed
the initial complaint.”). Thus, the Court denied leave
to amend as futile and dismissed the case without prejudice.
The Court declined to reach the issues of whether the statute
of limitations or repose would bar refiling a new case.
then filed a motion to reconsider this Court’s
judgment. The Court denied the motion and reasserted that
“the first-to-file bar applies to Relator’s
current Complaint and would continue to apply to
Relator’s Amended Complaint.” United
States ex rel. Carter v. Halliburton Co., No.
1:11-cv-602, 2016 WL 634656, at *7 (E.D. Va. Feb. 17, 2016).
The Court did modify its prior memorandum opinion, however,
so as to clarify that “neither prejudice, the statute
of limitations, nor the statute of repose” would bar
Carter from amending if the first-to-file bar did
not apply. The Court concluded that prejudice does
not preclude amendment, in part, because this case remains
far from resolution on the merits. See Id. at *4
(“[T]he present case has undergone substantial motions
practice, but remains far from mature in terms of
resolution.”). Carter appealed the Court’s
decisions and the Fourth Circuit is awaiting briefing.
now moves to supplement the appellate record to include a
report from Defendants’ Theater Water Quality Manager
for Iraq and Kuwait, Wil Granger (“Granger
Report”). (See Mem. in Supp. Ex. A [Dkt. 141]
at 10-31.) The report summarizes Granger’s
“cursory investigation” of Defendants’
water treatment practices at Ar Ramadi. (Ex. A at 13.) Carter
contends that the Granger Report “corroborated”
his allegations that Defendants were not complying with their
water treatment obligations under the LOGCAP III contract.
(Am. Compl. [Dkt. 111] ¶ 108.) Carter seeks to rely on
the Granger Report to show that Defendants had knowledge of
malfeasance when they sought bonuses under the LOGCAP III
contract in June and July 2005. (See Mem. in Supp.
did not file the Granger Report with this Court in any of the
post-remand proceedings. The Court’s only awareness of
the Granger Report during those proceedings arose from
references to the Report in the amended complaint, (Am.
Compl. ¶¶ 108-110, 112, 148), and Carter’s
brief attempt to discuss the Report at oral argument
regarding the motion to amend, (see Tr. [Dkt. 126]
at 15-16). The Court rebuked Carter’s reference to the
Granter Report at oral argument by interjecting that
“[t]his gets to the merits.” (Tr. At 16.) The
issues before the Court at that time, however, were
procedural and did not implicate the factual sufficiency of
Carter’s claims. Thus, the Court did not rely on the
Granger Report and did not mention the Report in either its
November 12 Opinion granting the motion to dismiss [Dkt. 124]
or the February 17 Opinion denying the motion to reconsider
Standard of Review
Rule of Appellate Procedure 10(a) defines the record on
appeal as “the original papers and exhibits filed in
the district court; the transcript of proceedings, if any;
and a certified copy of the docket entries prepared by the
district clerk.” Fed. R. App. P. 10(a). A district
court may correct or modify the record if (1) “any
difference arises about whether the record truly discloses
what occurred in the district court”; or (2) “if
anything material to either party is omitted from or
misstated in the record by error or accident.”
See Fed. R. App. P. 10(e)(1)-(2); Himler v.
Comprehensive Care Corp., 790 F.Supp. 114, 115 (E.D. Va.
presents two arguments in support of his motion to supplement
the record pursuant to Rule 10(e). First, he argues that the
Granger Report should be added to the record to
“accurately reflect what occurred in the district
court.” (Mem. in Supp. at 5-6.) In the alternative,
Carter argues under Rule 10(e)(2) that the Report was omitted
from the trial court proceedings due to “error or
accident.” (Mem. in Supp. at 7.) As described below,
neither of those arguments is persuasive. Thus, the Court
will deny the motion to supplement the record.
clear weight of authority indicates that ordinarily Rule
10(e) may not be employed to supplement an appellate record
with an exhibit that was not filed in the district court
proceeding leading to the appeal. Rohbrough v. Wyethy
Labs., Inc., 916 F.2d 970, 973 n.8 (4th Cir. 1990)
(affirming district court’s decision not to supplement
the record with documents plaintiff had not filed or
“brought to the attention of the district
court”); Appeal of Reckmeyer, 809 F.2d 786
(table), 1987 WL 36174, at *1 (4th Cir. 1987) (stating that
Rule 10(e) is not intended “to introduce new evidence
in the courts of appeals”); Amr v. Va. State
Univ., No. 3:07-cv-628, 2009 WL 1208203, at *2 (E.D. Va.
May 4, 2009) (“It is elemental that a district court
should properly refuse to supplement the record on appeal
with discovery documents that were not filed . . . or brought
to the attention of the district court . . . .”
(internal quotation and citation omitted); Thomas v.
Lodge No. 2461, 348 F.Supp.2d 708, 710 (E.D. Va. 2004)
(“Our Court also has made clear that ‘the purpose
of Rule 10(e) is not to allow a district court to add to the
record on appeal matters that did not occur there in the
course of the proceedings leading to the judgment under
review.’” (citation omitted)); Complaint of
Robins Maritime Inc., 162 F.R.D. 502, 504 (E.D. Va.
1995) (calling the above rule “well-settled”);
16A Fed. Prac. & Proc. Juris. § 3956.4 (4th ed.)
(“[O]rdinarily Rule 10(e) should not be used to insert
in the record items ...