US ex rel Becker v. Westinghouse Savan

Filed: October 30, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 01-2452
(CA-98-190)

United States of America ex rel. Martin
Becker,

Plaintiff - Appellant,

versus

Westinghouse Savannah River Company,

Defendant - Appellee.

O R D E R

The court further amends its opinion filed September 27 and

amended October 3, 2002, as follows:

On page 6, first full paragraph -- the last sentence in the

paragraph is deleted, and is replaced with the following:

Subsection (a)(7) imposes civil liabilities on any person
who “knowingly makes, uses, or causes to be made or used,
a false record or statement to conceal, avoid, or de-
crease an obligation to pay or transmit money or property
to the Government.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 Filed: October 3, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 01-2452
(CA-98-190)

United States of America ex rel. Martin
Becker,

Plaintiff - Appellant,

versus

Westinghouse Savannah River Company,

Defendant - Appellee.

O R D E R

The court amends its opinion filed September 27, 2002, as

follows:

On page 5, first full paragraph, line 11 -- the date is

corrected to read “July 11, 2001.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

4444444444444444444444444444444444444444444444447
UNITED STATES OF AMERICA, ex rel.
Martin Becker,
Plaintiff-Appellant,

v. No. 01-2452

WESTINGHOUSE SAVANNAH RIVER
COMPANY,
Defendant-Appellee.
4444444444444444444444444444444444444444444444448

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CA-98-190)

Argued: June 3, 2002

Decided: September 27, 2002

Before MOTZ and KING, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

____________________________________________________________

Affirmed by published opinion. Senior Judge Beezer wrote the opin-
ion, in which Judge Motz and Judge King joined.

____________________________________________________________

COUNSEL

ARGUED: John Steven Simmons, SIMMONS & GRIFFIN, L.L.C.,
Columbia, South Carolina; Stuart F. Pierson, TROUTMAN SAND-
ERS, L.L.P., Washington, D.C., for Appellant. Jeffrey Stuart Patter-
son, NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P.,
Columbia, South Carolina, for Appellee. ON BRIEF: Henry Ham-
mer, HAMMER, HAMMER, CARRIGG & POTTERFIELD, Colum-
bia, South Carolina, for Appellant. Daniel J. Westbrook, NELSON,
MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South
Carolina, for Appellee.

____________________________________________________________

OPINION

BEEZER, Senior Circuit Judge:

Martin Becker brought this suit under the False Claims Act
("FCA"), 31 U.S.C. § 3729 et seq. Becker alleges that Westinghouse
Savannah River Company ("Westinghouse") spent government funds
for an unauthorized purpose and created false records to conceal the
disbursement. Becker appeals the district court's entry of summary
judgment and assigns error to the court's rulings on several proce-
dural motions. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.

I

The Savannah River Plant ("Plant") is a federally-owned nuclear
installation in South Carolina owned by the United States. The
Department of Energy ("DOE") contracts with Westinghouse for
operation and maintenance of the Plant on a cost plus basis. Westing-
house requests funding for Plant projects from DOE. If DOE
approves Westinghouse's funding requests, it submits the requests to
the President for inclusion in the budget, who then submits the budget
to Congress for authorization. See 1 Office of the Gen. Counsel, U.S.
Gen. Accounting Office, Principles of Federal Appropriations Law 1-
13 to 1-18 (2d ed. 1991). If Congress appropriates funds for the spe-
cific funding request, DOE "obligates" funds for the specified project
and establishes an appropriations account.1 Westinghouse may receive
____________________________________________________________
1
No actual money is placed in DOE's appropriations accounts. Appro-
priations "represent legal authority granted by Congress to incur obliga-
tions and to make disbursements for the purposes, during the time
periods, and up to the amount limitations, specified in the appropriations
acts." 1 Principles of Federal Appropriations Law, supra, at 2-4.

2
payment charged to an appropriations account only for authorized
work and only in amounts equal to Westinghouse's actual costs plus
an additional fee. See id. at 2-4.

In Fiscal Years 1992 through 1995, Congress appropriated $55 mil-
lion for the construction of three buildings at the Plant ("Building Con-
struction").2 DOE obligated just under $54 million and established
appropriations accounts specifically for Building Construction man-
aged by DOE's Office of Defense Programs. Westinghouse com-
pleted the Building Construction under budget, with a balance of at
least $12 million of appropriated funds in the Defense Programs
accounts.

In January 1995, DOE underwent management and budget reorga-
nization. Management responsibility for the Westinghouse Defense
Programs accounts was transferred to DOE's Office of Environmental
Management. Because the Offices of Defense Programs and Environ-
mental Management were funded through separate Congressional
appropriations, however, appropriations to Defense Programs
accounts could not be transferred to Environmental Management
accounts without Congressional approval. See 1 Principles of Federal
Appropriations Law, supra, at 2-25 to 2-28. Although DOE appar-
ently requested Congress to authorize transfer of the Defense Pro-
grams appropriations to Environmental Management accounts, DOE
was unclear whether approval by Congress was actually given.3
____________________________________________________________
2
The appropriations are designated as line items 92-D-150 and 92-D-
153 and can be found in the following public laws: National Defense
Authorization Act for Fiscal Years 1992 and 1993, Pub. L. No. 102-190,
§ 3102(2), 105 Stat. 1290, 1564-65 (1991); National Defense Authoriza-
tion Act for Fiscal Year 1993, Pub. L. No. 102-484, § 3104(b)(1), 106
Stat. 2315, 2633-34 (1992); National Defense Authorization Act for Fis-
cal Year 1994, Pub. L. No. 103-160, § 3103(b)(1), 107 Stat. 1547, 1940-
41 (1993); National Defense Authorization Act for Fiscal Year 1995,
Pub. L. No. 103-337, § 3103(a)(5), 108 Stat. 2663, 3080-81 (1994).
3
The evidence before the district court did not show whether Congres-
sional approval for the transfer was given. In a 1995 Conference report,
Congress authorized $667 million of "prior year balances" to be used for
Defense Environmental Restoration and Waste Management accounts,
which are under the supervision of the Office of Environmental Manage-

3
 Despite this uncertainty, DOE transferred approximately $12 mil-
lion from the Defense Programs accounts to Environmental Manage-
ment accounts. DOE directed Westinghouse to change Budgeting and
Reporting codes in DOE and Westinghouse's shared accounting sys-
tem. The new codes would indicate that the $12 million of appropria-
tions constituted a credit balance in the Environmental Management
account. Although Westinghouse was aware of the uncertainty within
DOE regarding Congressional authority for the appropriations trans-
fer, it acceded to the Department's direction and changed the codes.
DOE then relied upon the putative Environmental Management fund-
ing authority indicated by the codes to authorize payment to Westing-
house for Plant expenditures unrelated to Building Construction.

Becker filed this suit, averring that Westinghouse had wrongfully
retained and used government funds and had created false records to
conceal this conduct in violation of §§ 3729(a)(4) and (a)(7) of the FCA.4
The government investigated the allegations in Becker's complaint
but declined to intervene, giving Becker the right to conduct the
action qui tam. 31 U.S.C. §§ 3730, 3730b.
____________________________________________________________
ment. H.R. Conf. Rep. 104-293, at *68. It is unclear from the face of the
report whether Congress meant to authorize a lump-sum transfer from all
Defense Programs accounts for which management responsibility was
transferred to the Office of Environmental Management or to grant only
"deobligation-reobligation" authority to DOE to use funds from expired
Fiscal Year 1995 Environmental Management accounts. See 1 Principles
of Federal Appropriations Law, supra, at 7-53. A lump-sum appropria-
tion allows the recipient agency to distribute funds among the individual
line item accounts as it sees fit. Int'l Union, United Auto., Aerospace &
Agric. Implement Workers v. Donovan, 746 F.2d 855, 861 (D.C. Cir.
1984); 1 Principles of Federal Appropriations Law, supra, at 6-158 to 6-
167. Even if Congress authorized a lump-sum transfer, there is insuffi-
cient record evidence to determine as a matter of law whether DOE
treated the line item transfer at issue here as part of that approved lump-
sum transfer and thus transferred the funds pursuant to Congressional
authority.
4
Becker also alleged that Westinghouse misrepresented the costs of the
Building Construction to the government in violation of §§ 3729(a)(1),
(a)(2) and (a)(7), but withdrew those claims and does not appeal the dis-
trict court's dismissal of them.

4
 During the protracted course of discovery, Becker learned that doc-
uments divulged by DOE pursuant to Becker's Freedom of Informa-
tion Act requests had been provided to DOE by Westinghouse. In a
letter to the district court outlining the progress of discovery, Becker
argued that the fact that Westinghouse originally possessed the docu-
ments was relevant to whether Becker's suit was prohibited under the
FCA's public disclosure bar. See 31 U.S.C. § 3730(d)(4)(A). Becker
requested that the district court order Westinghouse to produce a wit-
ness to testify about the exchange of documents between Westing-
house and DOE and the origin of those documents. In an order filed
July 11, 2001, the district court denied the request without comment.

On August 7, one week before the close of the scheduled discovery
period, Westinghouse moved for summary judgment. The following
day, Westinghouse served Becker with the affidavit of John Pesco-
solido, Chief Financial Officer for DOE's Savannah River Opera-
tions. On September 4, more than three months after Westinghouse
served Becker with documents and objections responsive to Becker's
discovery requests, Becker moved to compel the production of two
types of accounting documents mentioned by Pescosolido in his affi-
davit.

The district court granted Westinghouse's motion for summary
judgment and denied as untimely Becker's motion to compel discov-
ery. Becker moved for reconsideration, which the district court
denied.

Becker timely appeals the summary judgment in favor of Westing-
house, the denial of Becker's motion to compel discovery, the denial
of Becker's request that the court order Westinghouse to produce a
witness, and the denial of Becker's motion for reconsideration. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

II

We review de novo the district court's summary judgment in favor
of Westinghouse. See Hooven-Lewis v. Caldera, 249 F.3d 259, 265
(4th Cir. 2001). Summary judgment may be granted only when the
record evidence, construed in the light most favorable to the non-
movant, shows that "there is no genuine issue as to any material fact."

5
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). A "genuine issue"
exists if a reasonable jury could return a verdict for the non-movant.
Owen v. Carpenter's Dist. Council, 161 F.3d 767, 770 (4th Cir.
1998). We may affirm summary judgment on any ground supported
by the record. Brown v. Trans World Airlines, 127 F.3d 337, 343 (4th
Cir. 1997).

Section 3729(a)(7) of the FCA imposes civil liability on any person
who "knowingly makes, uses, or causes to be made or used, a false
record or statement to conceal, avoid, or decrease an obligation to pay
or transmit money or property to the Government." A person acts
"knowingly" if he or she knows the record or statement is false or acts
in deliberate ignorance of, or with reckless disregard for, the truth or
falsity of the record or statement. 31 U.S.C. § 3729(b). Subsection
(a)(4) imposes civil liability on any person who "has possession, cus-
tody, or control of property or money used, or to be used, by the Gov-
ernment and, intending to defraud the Government or willfully to
conceal the property, delivers, or causes to be delivered, less property
than the amount for which the person receives a certificate or receipt."
Subsection (a)(7) imposes civil liabilities on any person who “know-
ingly makes, uses, or causes to be made or used, a false record or
statement to conceal, avoid, or decrease an obligation to pay or
transmit money or property to the Government.”

Becker argues that Westinghouse violated § 3729(a)(4) and (a)(7)
by acquiescing to DOE's instructions to change the Budgeting and
Reporting codes. He contends that Westinghouse changed the Bud-
geting and Reporting codes while in deliberate ignorance of the exis-
tence or lack of Congressional authority for the appropriations
transfer or with reckless disregard for whether such authority existed.
Becker argues that changing the codes concealed from the govern-
ment the fact that the appropriations were originally designated for
Defense Programs accounts, and that the change enabled Westing-
house to request and receive disbursement from those appropriations
for a purpose other than that for which the appropriations were origi-
nally authorized.

We find Becker's argument problematic. It is possible to infer from
the evidence that, when changing the Budgeting and Reporting codes,
Westinghouse at least negligently disregarded whether Congress had
approved the appropriations transfer. Yet DOE had at least as much

6
knowledge as Westinghouse regarding Congressional authority for
the transfer and nonetheless instructed Westinghouse to change the
codes.

Durcholz, decided by the Seventh Circuit, is factually similar to
this case. There, a government military facility needed a sedimenta-
tion pond to be quickly dredged. United States ex rel. Durcholz v.
FKW, Inc., 189 F.3d 542, 543 (7th Cir. 1999). To speed the process,
a facility official instructed the contractor to submit invoices for
unperformed excavation work instead of invoices for dredging. Id. at
544. The contractor complied, dredged the pond, and was paid by the
facility. Id. Durcholz brought suit as relator for the United States,
alleging that the contractor knowingly submitted false claims to the
government. The Seventh Circuit upheld the district court's summary
judgment for the contractor, reasoning that

[i]f the government knows and approves of the particulars
of a claim for payment before that claim is presented, the
presenter cannot be said to have knowingly presented a
fraudulent or false claim. In such a case, the government's
knowledge effectively negates the fraud or falsity required
by the FCA. . . . We decline to hold [defendant] liable for
defrauding the government by following the government's
explicit directions.

Id. at 545 (emphasis added).

Besides the Seventh, at least three other circuits recognize that
prior government knowledge of an allegedly false claim can negate
the scienter required for an FCA violation. United States ex rel.
Kreindler v. United Techs. Corp., 985 F.2d 1148, 1157 (2d Cir.
1993); United States ex rel. Hagood v. Sonoma County Water Agency,
929 F.2d 1416, 1421 (9th Cir. 1991); Shaw v. AAA Eng'g & Drafting,
Inc., 213 F.3d 519, 534 (10th Cir. 2000); see also United States v.
Southland Mgmt. Corp., 288 F.3d 665, 686 (5th Cir. 2002) (rejecting
government knowledge defense but noting that such a defense would
be viable "where the falsity of the claim is unclear and the evidence
suggests that the defendant actually believed his claim was not false
because the government approved and paid the claim with full knowl-
edge of the relevant facts"). The relevance of the government's

7
knowledge of an allegedly false claim has not been addressed in this
Circuit since the 1986 amendments to the FCA.5 Today, we join with
our sister circuits and hold that the government's knowledge of the
facts underlying an allegedly false record or statement can negate the
scienter required for an FCA violation.

Becker essentially contends that in changing the Budgeting and
Reporting codes, Westinghouse implicitly represented to the govern-
ment that the appropriations were authorized for Environmental Man-
agement purposes. In following DOE's instructions, however,
Westinghouse properly relied on DOE's knowledge of Congressional
authority for the appropriations transfer gleaned from DOE's commu-
nications with Congress. Cf. United States v. Pemco Aeroplex, Inc.,
195 F.3d 1234, 1238 (11th Cir. 1999) (noting that contractor in unau-
thorized possession of government property must return it or "other-
wise dispos[e] of it in accordance with the government's
instructions"). DOE's full knowledge of the material facts underlying
any representations implicit in Westinghouse's conduct negates any
knowledge that Westinghouse had regarding the truth or falsity of
those representations.

Becker failed to raise a triable issue that Westinghouse knowingly
made a false record or statement pursuant to § 3729(a)(7) and neces-
sarily failed to raise a triable issue on the more stringent specific
intent standard of § 3729(a)(4). The district court properly granted
Westinghouse's motion for summary judgment.

III

A.

Becker challenges two discovery rulings made by the district court:
the September 28 order denying Becker's motion to compel produc-
tion of documents mentioned in Pescosolido's affidavit, and the July
11 order denying Becker's request that Westinghouse provide a wit-
ness to testify about document exchanges between Westinghouse and
____________________________________________________________
5
Before the 1986 amendments to the FCA, full government knowledge
of the facts underlying a qui tam action precluded the district court's
jurisdiction to hear the suit. 31 U.S.C. § 3730(b)(4) (1982).

8
DOE during discovery. Becker contends that the evidence he sought
would have been relevant to Westinghouse's knowledge of Congres-
sional authority for the funds transfer. We afford substantial discre-
tion to a district court in managing discovery and review discovery
rulings only for abuse of that discretion. Lone Star Steakhouse &
Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir.
1995).

The district court denied as untimely Becker's September 28
motion to compel discovery. Local Rule 37.01 of the District Court
for the District of South Carolina states that "[m]otions must be filed
within twenty (20) days after receipt of the discovery response to
which the motion to compel is directed." The district court has discre-
tion to consider an untimely motion to compel if the movant "offer[s]
an acceptable explanation for [the motion's] tardiness." See Spencer
Med. Assocs. v. Comm'r, 155 F.3d 268, 273 (4th Cir. 1998). Becker
concedes that his motion was untimely, but argues that his tardiness
was justifiable due to "the scope of discovery" and the fact that Wes-
tinghouse "stated that it had produced all of the potentially responsive
documents" in its responses to Becker's discovery requests.

The district court denied without comment Becker's request that
the court order Westinghouse to produce a witness to testify about
Freedom of Information Act exchanges between DOE and Westing-
house during the course of litigation. Becker contends that this denial
precluded him from obtaining evidence relevant to Westinghouse's
knowledge of Congressional authority for the funds transfer.

We need not determine whether the district court abused its discre-
tion. As we have explained, DOE's full knowledge of the facts sur-
rounding Westinghouse's alleged false statement negates the scienter
required for violation of the FCA. DOE was the entity involved in
appropriations discussions with Congress; Westinghouse could not
have had any more knowledge about those discussions and their out-
come than DOE itself. Any evidence tending to show Westinghouse's
knowledge of the truth or falsity of the claim is immaterial. Even if
the district court erred in rejecting Becker's reasons why his motion
to compel was tardy or why Westinghouse should be compelled to
produce a witness, the error was harmless. See Fed. R. Civ. P. 61.

9
 B.

Becker challenges the district court's denial of his motion to alter
or amend the judgment pursuant to Federal Rule of Civil Procedure
59(e). We review for abuse of discretion a district court's denial of
a Rule 59(e) motion. Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148
F.3d 396, 402 (4th Cir. 1998).

There are three circumstances in which the district court can grant
a Rule 59(e) motion: "(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at trial;
or (3) to correct a clear error of law or prevent manifest injustice."
Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998). Becker's motion did not point to newly discovered evidence
or an intervening change in law that would justify altering or amend-
ing the judgment. The district court's summary judgment was legally
correct and did not work a manifest injustice. "[M]ere disagreement
does not support a Rule 59(e) motion." Hutchinson v. Staton, 994
F.2d 1076, 1082-83 (4th Cir. 1993). The district court properly denied
the motion.

C.

The district did not err by denying Becker's motion for reconsider-
ation. Any error committed by the district court in managing discov-
ery was harmless.

IV

The district court properly entered summary judgment and denied
Becker's motion to alter or amend the judgment. If the district court
erred in denying Becker's motion to compel discovery or his request
that the Court order production of a witness, that error was harmless.

AFFIRMED

10