The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
UNITED STATES OF AMERICA, ex rel., )
GEOFFREY HOWARD, and )
ZELLA HEMPHILL, )
)
Plaintiffs, )
) Case No. 11-4022
v. )
)
KBR, INC. and KELLOGG BROWN & )
ROOT SERVICES, INC., )
)
Defendants. )
ORDER AND OPINION
This matter is now before the Court on Defendants KBR, Inc. and Kellogg Brown & Root
Services, Inc.’s (“KBR” or “Defendants”) Motion for Certification of Interlocutory Appeal under
28 U.S.C. § 1292(b). ECF No. 229. For the reasons stated below, KBR’s Motion is DENIED.
BACKGROUND
This case involves a dispute surrounding the False Claims Act (“FCA”) where Relators
allege that KBR’s failure to redistribute excess product resulted in overbuying. Because the Court
recounted in detail the background of this case in its previous order addressing Defendants’ motion
to dismiss, the Court will incorporate the remaining alleged facts in this Opinion. ECF No. 213.
On May 7, 2020, KBR filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction. ECF No. 197. On July 9, 2020, the Court denied
KBR’s motion. ECF No. 213. On July 22, 2020, KBR filed a motion for reconsideration of the
Court’s July 9, 2020 Order. ECF No. 214. On September 25, 2020, the Court denied KBR’s motion
for reconsideration. ECF No. 225. On October 23, 2020, KBR filed this instant Motion for
Certification of Interlocutory Appeal. ECF No. 229. On November 6, 2020, Relators filed their
response. ECF No. 231. On November 20, 2020, KBR filed its reply. ECF No. 233. This Opinion
follows.
STANDARD OF REVIEW
A district judge may certify an interlocutory appeal of a nonfinal order if “such order
involves a controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b); see also Boim v. Quranic Literacy Inst. & Holy
Land Found. For Relief And Dev., 291 F.3d 1000, 1007 (7th Cir. 2002). The request must also be
filed within a reasonable time. Ahrenholz v. Board of Tr. of the Univ. of Ill., 219 F.3d 674, 675
(7th Cir. 2000).
Each of these criteria must be met before a district court can certify its order for an
immediate appeal. Id. at 675. Once the district court certifies the request for an appeal, the Court
of Appeals has the discretion to permit the appeal from such order. 28 U.S.C. § 1292(b). Section
1292(b) “must be used sparingly lest interlocutory review increase the time and expense required
for litigation.” Asher v. Baxter Intern. Inc., 505 F.3d 736, 741 (7th Cir. 2007).
ANALYSIS
KBR asserts that this Court’s July 2020 Order presents a question of law that meets the
statutory criteria for certification. KBR identifies the question as follows: “[w]hether, in the
Seventh Circuit, a district court’s finding that a relator’s allegations were ‘substantially similar’ to
public disclosures requires it also to conclude that the relator did not materially add to those public
disclosures.” ECF No. 230 at 6.
An immediate appeal may materially advance the ultimate termination of the litigation. If
the Court of Appeals ruled in KBR’s favor, such a ruling would ultimately dismiss the case. See,
e.g., General Dynamics Corp. v. American Tel. & Tel. Co., 658 F.Supp. 417, 419 (N.D. Ill. 1987).
However, KBR has not shown that the July 2020 Order involves any controlling question of law
on which there is a substantial ground for difference of opinion.
The original source exception permits jurisdiction over an FCA action even if the relator's
lawsuit is based upon publicly disclosed information provided that the relator is “an original source
of the information.” 31 U.S.C. § 3730(e)(4)(A). An “original source” is considered an “individual
who either . . . has voluntarily disclosed to the Government the information on which allegations
or transactions in a claim are based, or (2) who has knowledge that is independent of and materially
adds to the publicly disclosed allegations or transactions . . .” § 3730(e)(4)(B). As the Court noted
in its July 9, 2020, and September 25, 2020 Orders, Relators materially added to the public
disclosures and were therefore not barred from bringing this instant action. While KBR contends
that the Court “ignored” Seventh Circuit cases, it did not. The Court thoroughly reviewed the
Seventh Circuit standard in its July 2020 Order addressing KBR’s motion to dismiss, and even
analyzed in detail two Seventh Circuit cases in its September 2020 Order where it distinguished
why the cases KBR was adamant the Court should follow were not applicable to this matter. ECF
No. 233 at 5-6. The Court specifically noted the following:
Unlike the relators in Bellevue and Cause of Action1, Relators here provided
specific concrete examples that suggest fraud. They were not simply providing their
own inference from information already disclosed but instead, disclosed new
information and provided emails that supported their assertion that Defendants
were engaged in a knowing cover-up as opposed to mere negligence. Plaintiffs
sufficiently alleged that information had not previously been disclosed and thus,
their claims fall outside the public disclosure bar.
Id. at 6. Relators submitted an extensive list of emails and conversations they were privy to, many
of which were not disclosed in governmental audits, reports, or letters. The information provided
1 Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712 (7th Cir. 2017); Cause of Action v. Chicago
Transit Auth., 815 F.3d 267 (7th Cir. 2016)
by the Relators materially added to the publicly disclosed information. This finding is consistent
with the text of § 3730(e)(4)(A)-(B) and does not present a question of law as to which there is
substantial ground for difference of opinion.
Moreover, the issue is not a pure question of law that the Seventh Circuit can decide
“quickly and cleanly without having to study the record.” Ahrenholz, 219 F.3d at 675. Here, the
record is quite extensive as this lawsuit dates to 2011. Resolution of the issues from this Court’s
Order are fact specific, which generally makes them inappropriate for an appeal under § 1292(b).
See Richardson Elecs., Ltd. v. Panache Broad. of Pa., Inc., 202 F.3d 957, 958 (7th Cir. 2000); see
also In re Beale, 2008 WL 538913, at *4 (N.D. Ill. 2008) (finding that a fact-specific issue was
not appropriate for interlocutory review).
Overall, KBR has failed to show that this Court’s Order involves controlling questions of
law on which there is a substantial ground for difference of opinion. Accordingly, the request for
certification of an interlocutory appeal is denied.
CONCLUSION
For the reasons stated, Defendants’ [229] Motion for Certification of Interlocutory
Appeal is DENIED.
ENTERED this 11th day of December, 2020.
/s/ Michael M. Mihm
Michael M. Mihm
United States District Judge