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

Case: 09-5362 Document: 1235869 Filed: 03/19/2010 Page: 1
[CASE BEING CONSIDERED FOR TREATMENT PURSUANT TO

RULE 34(j) OF THE COURT’S RULES]
No. 09-5362
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________
PHILIP J. BERG, ESQUIRE, on his Behalf and

on 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 COURT

FOR THE DISTRICT OF COLUMBIA
________________________
BRIEF FOR THE UNITED STATES

________________________
TONY WEST
Assistant Attorney General
RONALD C. MACHEN JR.

United States Attorney
MARK B. STERN
(202) 514-5089
ERIC FLEISIG-GREENE
(202) 514-4815
Attorneys, Appellate Staff
Civil Division, Room 7214
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530-0001
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 court’s order of
dismissal, dated June 9, 2009, and the district court’s
memorandum opinion and order denying relator’s 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 court’s
memorandum opinion is reported at 656 F. Supp. 2d 107. No
official citation exists for the court’s 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

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. Dep’t of State, No. 08-2234 (D.D.C.); and Taitz v. Obama,
No. 10-151 (D.D.C.).
/s/ Eric Fleisig-Greene

Eric Fleisig-Greene
Attorney for the United States
202-514-4815
eric.fleisig-greene@usdoj.gov
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
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. Dep’t 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. Nat’l Red Cross,
518 F.3d 61 (D.C. Cir. 2008). . . . . . . . . . . . . 7-10, 12
United States ex rel. Sequoia Orange Co. v. Baird-Neece

Packing 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.
ii
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
iii
[CASE BEING CONSIDERED FOR TREATMENT PURSUANT TO

RULE 34(j) OF THE COURT’S RULES]
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________
No. 09-5362
________________________
PHILIP J. BERG, ESQUIRE, on his Behalf and

on 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 COURT

FOR 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 Obama’s
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
Berg’s motion to reconsider on September 21, 2009. Appendix
(“App.”) 3-4. Berg filed a timely notice of appeal on October

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
Obama’s 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, Berg’s
2
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 Obama’s 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,
3
31 U.S.C. §§ 3729(a)(1)(B)-(G).1 Any person who violates the
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”).2 31 U.S.C.
§§ 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).
1
After Berg brought this lawsuit, Congress enacted the Fraud
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 a
variety of respects. None of those amendments is material to the
issues presented in this appeal. This brief’s references are to
the current version of the False Claims Act, as amended.
2
“Qui tam is short for the Latin phrase qui tam pro domino
rege quam pro se ipso in hac parte sequitur, which means ‘who
pursues this action on our Lord the King’s behalf as well as his
own.’ The phrase dates from at least the time of Blackstone.”
Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529
U.S. 765, 768 n.1 (2000).
4
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 Government’s 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 relator’s 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
5
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 relator’s 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
6
rational relation to a valid purpose, which the government had
failed to establish; and that he was entitled to discovery into
the government’s 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. Nat’l 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 Berg’s “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
government’s decision to dismiss this False Claims Act suit,
brought by Berg in the name of the United States. The False
7
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. Nat’l 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 government’s “decision
to dismiss the case, based on its own assessment, is not
reviewable in the district court or this court.” Id. Berg’s
contrary arguments are without merit.
STANDARD OF REVIEW
The district court’s determination that the dismissal of a
False Claims Act suit lies within the discretion of the United
States, and the court’s rejection of Berg’s conflict-of-interest
allegations as facially inadequate, are legal conclusions that
this Court reviews de novo. See, e.g., Cummings v. Dep’t 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
8
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. Nat’l 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 Branch’s broad discretion over whether to prosecute
cases, and a plaintiff’s 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 government’s 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
9
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 Executive’s “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 relator’s 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), aff’d, 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
3
As the district court noted, this Court has left open
whether the government’s dismissal authority may be more limited
in instances of “fraud on the court.” App. 7 n.1 (citing Hoyte,
518 F.3d at 65). The court explained, however, that “Berg has
neither argued that the government’s actions fall within the
possible exception of fraud on the court, nor presented support
showing that his disagreement with the government regarding the
merits of his claim could be considered fraud on the court,”
rendering any such exception inapplicable. App. 8 n.1.
10
has offered no evidence to contradict the government’s
explanation for its dismissal. Swift, 318 F.3d at 254.
There is likewise no merit to Berg’s 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.
Berg’s 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.
11
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
government’s decision to dismiss the case, and its judgment
should be affirmed.
12
CONCLUSION
For the foregoing reasons, the district court’s judgment
should be affirmed.
Respectfully submitted,
TONY WEST
Assistant Attorney General
RONALD C. MACHEN JR.

United States Attorney
MARK B. STERN
(202) 514-5089
ERIC FLEISIG-GREENE
(202) 514-4815
Attorneys, Appellate Staff
MARCH 2010
13
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 office’s word
processing system.

Eric Fleisig-Greene
202-514-4815
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. Berg
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
(610) 825-3134
philjberg@gmail.com

Eric Fleisig-Greene
202-514-4815
ADDENDUM
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
31 U.S.C.A. § 3730 Page 1
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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Add. 1

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31 U.S.C.A. § 373009-5362 Document: 1235869 Filed: 03/19/2010 Page: 25 Page 2
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

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upon a further showing in camera that the Government has pursued the criminal or civil investigation or pro-
ceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing
criminal or civil investigation or proceedings.
(5) Notwithstanding subsection (b), the Government may elect to pursue its claim through any alternate remedy
available to the Government, including any administrative proceeding to determine a civil money penalty. If any
such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same
rights in such proceeding as such person would have had if the action had continued under this section. Any
finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on
all parties to an action under this section. For purposes of the preceding sentence, a finding or conclusion is final
if it has been finally determined on appeal to the appropriate court of the United States, if all time for filing such
an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to
judicial review.
(d) Award to qui tam plaintiff.--(1) If the Government proceeds with an action brought by a person under sub-
section (b), such person shall, subject to the second sentence of this paragraph, receive at least 15 percent but
not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to
which the person substantially contributed to the prosecution of the action. Where the action is one which the
court finds to be based primarily on disclosures of specific information (other than information provided by the
person bringing the action) relating to allegations or transactions in a criminal, civil, or administrative hearing,
in a congressional, administrative, or Government [FN2] Accounting Office report, hearing, audit, or investiga-
tion, or from the news media, the court may award such sums as it considers appropriate, but in no case more
than 10 percent of the proceeds, taking into account the significance of the information and the role of the per-
son bringing the action in advancing the case to litigation. Any payment to a person under the first or second
sentence of this paragraph shall be made from the proceeds. Any such person shall also receive an amount for
reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and
costs. All such expenses, fees, and costs shall be awarded against the defendant.
(2) If the Government does not proceed with an action under this section, the person bringing the action or set-
tling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and
damages. The amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the ac-
tion or settlement and shall be paid out of such proceeds. Such person shall also receive an amount for reason-
able expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs.
All such expenses, fees, and costs shall be awarded against the defendant.
(3) Whether or not the Government proceeds with the action, if the court finds that the action was brought by a
person who planned and initiated the violation of section 3729 upon which the action was brought, then the
court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action which the
person would otherwise receive under paragraph (1) or (2) of this subsection, taking into account the role of that
person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the per-
son bringing the action is convicted of criminal conduct arising from his or her role in the violation of section
3729, that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the
action. Such dismissal shall not prejudice the right of the United States to continue the action, represented by the

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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 the
action 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 of section 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

18 U.S.C.A. § 205 Page 1
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-

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18 U.S.C.A. § 205 09-5362 Document: 1235869 Filed: 03/19/2010 Page: 30 Page 2
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, or
otherwise 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

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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.)

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END OF DOCUMENT

18 U.S.C.A. § 208 Page 1
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

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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

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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

5 C.F.R. § 2635.502 Page 1
his impartiality should use the process de-

scribed in this section to determine whether he
should or should not participate in a particular
Effective:[See Text Amendments]
matter.
Code of Federal Regulations Currentness
Title 5. Administrative Personnel (b) Definitions. For purposes of this section:
Chapter XVI. Office of Government Ethics
Subchapter B. Government Ethics
Part 2635. Standards of Ethical Conduct (1) An employee has a covered relationship
for Employees of the Executive Branch with:
(Refs & Annos)
Subpart E. Impartiality in Performing (i) A person, other than a prospective employer
Official Duties described in § 2635.603(c), with whom the em-
ployee has or seeks a business, contractual or
§ 2635.502 Personal and business
other financial relationship that involves other
relationships.
than a routine consumer transaction;
(a) Consideration of appearances by the employee.
Where an employee knows that a particular matter Note: An employee who is seeking employment
involving specific parties is likely to have a direct within the meaning of § 2635.603 shall comply
and predictable effect on the financial interest of a with subpart F of this part rather than with this sec-
member of his household, or knows that a person tion.
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 (ii) A person who is a member of the employ-
cause a reasonable person with knowledge of the ee's household, or who is a relative with whom
relevant facts to question his impartiality in the the employee has a close personal relationship;
matter, the employee should not participate in the
matter unless he has informed the agency designee (iii) A person for whom the employee's spouse,
of the appearance problem and received authoriza- parent or dependent child is, to the employee's
tion from the agency designee in accordance with knowledge, serving or seeking to serve as an
paragraph (d) of this section. officer, director, trustee, general partner, agent,
attorney, consultant, contractor or employee;
(1) In considering whether a relationship would
cause a reasonable person to question his im- (iv) Any person for whom the employee has,
partiality, an employee may seek the assistance within the last year, served as officer, director,
of his supervisor, an agency ethics official or trustee, general partner, agent, attorney, con-
the agency designee. sultant, contractor or employee; or
(2) An employee who is concerned that circum- (v) An organization, other than a political party
stances other than those specifically described described in 26 U.S.C. 527(e), in which the
in this section would raise a question regarding employee is an active participant. Participation

5 C.F.R. §Case: 09-5362
2635.502 Document: 1235869 Filed: 03/19/2010 Page: 37 Page 2
is active if, for example, it involves service as gislation is not a particular matter involving specif-
an official of the organization or in a capacity ic parties, the employee may continue to work on
similar to that of a committee or subcommittee the legislation and need not be concerned that his
chairperson or spokesperson, or participation in wife's employment with an affected corporation
directing the activities of the organization. In would raise a question concerning his impartiality.
other cases, significant time devoted to promot-
ing specific programs of the organization, in-
Example 3: An employee of the Defense Logist-
cluding coordination of fundraising efforts, is
ics Agency who has responsibilities for testing
an indication of active participation. Payment
avionics being produced by an Air Force contractor
of dues or the donation or solicitation of finan-
has just learned that his sister-in-law has accepted
cial support does not, in itself, constitute active
employment as an engineer with the contractor's
participation.
parent corporation. Where the parent corporation is
a conglomerate, the employee could reasonably
Note: Nothing in this section shall be construed conclude that, under the circumstances, a reason-
to suggest that an employee should not participate able person would not be likely to question his im-
in a matter because of his political, religious or partiality if he were to continue to perform his test
moral views. and evaluation responsibilities.
(2) Direct and predictable effect has the mean- Example 4: An engineer has just resigned from
ing set forth in § 2635.402(b)(1). 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
(3) Particular matter involving specific parties
procurement responsibilities. Although the employ-
has the meaning set forth in § 2637.102(a)(7)
ee did not receive an extraordinary payment in con-
of this chapter.
nection with her resignation and has severed all fin-
ancial ties with the firm, under the circumstances
Example 1: An employee of the General Services she would be correct in concluding that her former
Administration has made an offer to purchase a res- service as an officer of the company would be
taurant owned by a local developer. The developer likely to cause a reasonable person to question her
has submitted an offer in response to a GSA solicit- impartiality if she were to participate in the admin-
ation for lease of office space. Under the circum- istration of a DOT contract for which the firm is a
stances, she would be correct in concluding that a first-tier subcontractor.
reasonable person would be likely to question her
impartiality if she were to participate in evaluating
Example 5: An employee of the Internal Revenue
that developer's or its competitor's lease proposal.
Service is a member of a private organization
whose purpose is to restore a Victorian-era railroad
Example 2: An employee of the Department of station and she chairs its annual fundraising drive.
Labor is providing technical assistance in drafting Under the circumstances, the employee would be
occupational safety and health legislation that will correct in concluding that her active membership in
affect all employers of five or more persons. His the organization would be likely to cause a reason-
wife is employed as an administrative assistant by a able person to question her impartiality if she were
large corporation that will incur additional costs if to participate in an IRS determination regarding the
the proposed legislation is enacted. Because the le- tax-exempt status of the organization.

5 C.F.R. §Case: 09-5362
(c) Determination by agency designee. Where he volving specific parties would not violate 18 U.S.C.
has information concerning a potential appearance 208(a), but would raise a question in the mind of a
problem arising from the financial interest of a reasonable person about his impartiality, the agency
member of the employee's household in a particular designee may authorize the employee to participate
matter involving specific parties, or from the role in in the matter based on a determination, made in
such matter of a person with whom the employee light of all relevant circumstances, that the interest
has a covered relationship, the agency designee of the Government in the employee's participation
may make an independent determination as to outweighs the concern that a reasonable person may
whether a reasonable person with knowledge of the question the integrity of the agency's programs and
relevant facts would be likely to question the em- operations. Factors which may be taken into con-
ployee's impartiality in the matter. Ordinarily, the sideration include:
agency designee's determination will be initiated by
information provided by the employee pursuant to
(1) The nature of the relationship involved;
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- (2) The effect that resolution of the matter
graph (e) of this section, the agency designee may would have upon the financial interests of the
make this determination on his own initiative or person involved in the relationship;
when requested by the employee's supervisor or any
other person responsible for the employee's assign-
(3) The nature and importance of the employ-
ment.
ee's role in the matter, including the extent to
which the employee is called upon to exercise
(1) If the agency designee determines that the discretion in the matter;
employee's impartiality is likely to be ques-
tioned, he shall then determine, in accordance
(4) The sensitivity of the matter;
with paragraph (d) of this section, whether the
employee should be authorized to participate in
the matter. Where the agency designee determ- (5) The difficulty of reassigning the matter to
ines that the employee's participation should another employee; and
not be authorized, the employee will be dis-
qualified from participation in the matter in ac-
(6) Adjustments that may be made in the em-
cordance with paragraph (e) of this section.
ployee's duties that would reduce or eliminate
the likelihood that a reasonable person would
(2) If the agency designee determines that the question the employee's impartiality.
employee's impartiality is not likely to be ques-
tioned, he may advise the employee, including
Authorization by the agency designee shall be
an employee who has reached a contrary con-
documented in writing at the agency designee's
clusion under paragraph (a) of this section, that
discretion or when requested by the employee.
the employee's participation in the matter
An employee who has been authorized to parti-
would be proper.
cipate in a particular matter involving specific
parties may not thereafter disqualify himself
(d) Authorization by agency designee. Where an from participation in the matter on the basis of
employee's participation in a particular matter in- an appearance problem involving the same cir-

5 C.F.R. §Case: 09-5362
cumstances that have been considered by the employee is the only one with an intimate know-
agency designee. ledge of the case, the agency designee might de-
termine, after considering all relevant circum-
stances, that it is in the Government's interest for
Example 1: The Deputy Director of Personnel for
the employee to complete the audit, which is sub-
the Department of the Treasury and an attorney
ject to additional levels of review.
with the Department's Office of General Counsel
are general partners in a real estate partnership. The
Deputy Director advises his supervisor, the Director (e) Disqualification. Unless the employee is author-
of Personnel, of the relationship upon being as- ized to participate in the matter under paragraph (d)
signed to a selection panel for a position for which of this section, an employee shall not participate in
his partner has applied. If selected, the partner a particular matter involving specific parties when
would receive a substantial increase in salary. The he or the agency designee has concluded, in accord-
agency designee cannot authorize the Deputy Dir- ance with paragraph (a) or (c) of this section, that
ector to participate on the panel under the authority the financial interest of a member of the employee's
of this section since the Deputy Director is prohib- household, or the role of a person with whom he
ited by criminal statute, 18 U.S.C. 208(a), from par- has a covered relationship, is likely to raise a ques-
ticipating in a particular matter affecting the finan- tion in the mind of a reasonable person about his
cial interest of a person who is his general partner. impartiality. Disqualification is accomplished by
See § 2635.402. not participating in the matter.
Example 2: A new employee of the Securities (1) Notification. An employee who becomes
and Exchange Commission is assigned to an invest- aware of the need to disqualify himself from
igation of insider trading by the brokerage house participation in a particular matter involving
where she had recently been employed. Because of specific parties to which he has been assigned
the sensitivity of the investigation, the agency de- should notify the person responsible for his as-
signee may be unable to conclude that the Govern- signment. An employee who is responsible for
ment's interest in the employee's participation in the his own assignment should take whatever steps
investigation outweighs the concern that a reason- are necessary to ensure that he does not parti-
able person may question the integrity of the invest- cipate in the matter from which he is disquali-
igation, even though the employee has severed all fied. Appropriate oral or written notification of
financial ties with the company. Based on consider- the employee's disqualification may be made to
ation of all relevant circumstances, the agency de- coworkers by the employee or a supervisor to
signee might determine, however, that it is in the ensure that the employee is not involved in a
interest of the Government for the employee to pass particular matter involving specific parties
on a routine filing by the particular brokerage from which he is disqualified.
house.
(2) Documentation. An employee need not file

Example 3: An Internal Revenue Service employ- a written disqualification statement unless he is
ee involved in a long and complex tax audit is ad- required by part 2634 of this chapter to file
vised by her son that he has just accepted an entry- written evidence of compliance with an ethics
level management position with a corporation agreement with the Office of Government Eth-
whose taxes are the subject of the audit. Because ics or is specifically asked by an agency ethics
the audit is essentially complete and because the official or the person responsible for his assign-

5 C.F.R. §Case: 09-5362
ment to file a written disqualification state-

ment. However, an employee may elect to cre-
ate a record of his actions by providing written
notice to a supervisor or other appropriate offi-
cial.
(f) Relevant considerations. An employee's reputa-

tion for honesty and integrity is not a relevant con-
sideration for purposes of any determination re-
quired by this section.
SOURCE: 57 FR 35041, Aug. 7, 1992; 62 FR

48747, Sept. 17, 1997, unless otherwise noted.
AUTHORITY: 5 U.S.C. 7301, 7351, 7353; 5

U.S.C. App. (Ethics in Government Act of 1978);
E.O. 12674, 54 FR 15159; 3 CFR, 1989 Comp., p.
215, as modified by E.O. 12731, 55 FR 42547; 3
CFR, 1990 Comp., p. 306.
5 C. F. R. § 2635.502, 5 CFR § 2635.502
Current through March 5, 2010; 75 FR 10193
© 2010 Thomson Reuters

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

[CASE BEING CONSIDERED FOR TREATMENT PURSUANT TO

IN THE UNITED STATES COURT OF APPEALS

PHILIP J. BERG, ESQUIRE, on his Behalf and

BARACK HUSSEIN OBAMA AND UNITED STATES OF AMERICA,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR THE UNITED STATES

RONALD C. MACHEN JR.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

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

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

B. Rulings Under Review:

The rulings under review are the district court’s order of

dismissal, dated June 9, 2009, and the district court’s

memorandum opinion and order denying relator’s 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 court’s

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

official citation exists for the court’s orders.

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

issues to this case to qualify as related cases under

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

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. Dep’t of State, No. 08-2234 (D.D.C.); and Taitz v. Obama,

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

/s/ Eric Fleisig-Greene

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

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. Dep’t 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,

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

United States ex rel. Sequoia Orange Co. v. Baird-Neece

Vt. Agency of Natural Res. v. United States ex rel. Stevens,