Bench Memos

NRO’s home for judicial news and analysis.

Feeble, Laughable PFAW—Part IV


I’ve just read the third of the five judicial opinions of Judge Roberts that PFAW attacks, and PFAW’s batting average remains at .000.

In objecting to Judge Roberts’s majority opinion in United States ex rel. Totten v. Bombardier Corp. PFAW professes a concern for “protecting the federal Treasury.” This concern appears to be newfound, as it obviously did not animate PFAW’s immediately preceding discussion of the Taucher case. Nor is there any evidence that this has previously been a concern of PFAW’s. A cynic might be pardoned for thinking PFAW’s concern insincere and contrived.

In any event, PFAW’s reading of this case is highly distorted. Judge Roberts, joined by Clinton appointee Judith Rogers, ruled that a provision of the False Claims Act that provides that imposes liability on any person who submits a false claim “to an officer or employee of the United States Government” means, lo and behold, that liability attaches only if a false claim is submitted “to an officer or employee of the United States Government,” not if it is submitted to Amtrak. Applying Supreme Court precedent, Roberts “adhere[d] to the plain language of the statute, rather than invoke the legislative history to embrace a reading at odds with the statute.”

Judge Garland, in dissent, did not dispute the majority’s reading of this provision but instead would have relied on a different provision of the False Claims Act (subsection (a)(2)) to reach a different result. Judge Roberts pointed out that in the six-year history of the case none of the parties had ever argued that subsection (a)(2) was applicable and that arguments not made on appeal are ordinarily deemed waived. Judge Roberts (again, joined in the entirety of his opinion by Judge Rogers) further interpreted subsection (a)(2), which attaches liability where a person makes a false statement to get a false claim “paid or approved by the Government,” to require, believe it or not, that the claim have been paid or approved by the Government.


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