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United States ex rel. Carter v. Halliburton Co.

United States District Court, E.D. Virginia, Alexandria Division

May 25, 2016

HALLIBURTON CO., ET AL., Defendants.



         This 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 the motion.

         I. Background

         The 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.

         The Court of Appeals for the Fourth Circuit[1] and the United States Supreme Court[2] remanded Carter’s case for this Court to determine how to apply the FCA’s first-to-file bar[3] 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 currently pending.

         After 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.

         Carter 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.[4] 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.

         Carter 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. at 6.)

         Carter 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 [Dkt. 136].[5]

         II. Standard of Review

         Federal 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. 1992).

         III. Analysis

         Carter 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.

         The 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 ...

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