                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

                               )
PHILLIP J. BERG,               )
                               )
           Plaintiff,          )
                               )
           v.                  )   Civil Action No. 08-1933 (RWR)
                               )
BARACK HUSSEIN OBAMA JR.,      )
                               )
           Defendant.          )
                               )

                         MEMORANDUM OPINION

     Relator Philip J. Berg moves for reconsideration of an order

dismissing his qui tam action against President Obama after Berg

failed to convince the United States not to seek dismissal of the

case.   Because Berg does not show that justice requires

reconsideration, his motion will be denied.

                             BACKGROUND

     Berg filed this case pro se, alleging a claim under the

False Claims Act, 31 U.S.C. § 3730 et seq., against President

Obama claiming that the President is not a citizen of the United

States, and was therefore ineligible to receive his salary as a

United States Senator.   (See Relator’s Mem. of Law in Support of

Relator’s Mot. for Recons. (“Relator’s Mem.”) at 5.)   The United

States sought to dismiss this action with prejudice, because the

“Department of Justice has reviewed the relator’s allegations,

determined that they lack merit, and concluded that they

therefore should not be pursued on the United States’ behalf[.]”
                                -2-

(United States’ Suggestion of Dismissal at 2.   On June 9, 2009, a

hearing was held to allow Berg a formal opportunity to convince

the government not to end the case.   The government heard Berg’s

request but continued to request dismissal, and Berg’s case was

dismissed.   (See Order of June 9, 2009.)

     Berg has moved under Federal Rule of Civil Procedure 59(e)

for reconsideration of the order dismissing the case.   He argues

that it was a violation of federal conflict of interest statutes

for U.S. Department of Justice lawyers to urge dismissal since

they are employed by the Attorney General who reports to the

President.   The government opposes Berg’s motion.

                            DISCUSSION

     “While the court has considerable discretion in ruling on a

Rule 59(e) motion, the reconsideration and amendment of a

previous order is an unusual measure.”   City of Moundridge v.

Exxon Mobil Corp., 244 F.R.D. 10, 11-12 (D.D.C. 2007) (quoting

El-Shifa Pharm. Indus. v. United States, Civil Action No. 01-731

(RWR), 2007 WL 950082, at *1 (D.D.C. Mar. 28, 2007) (internal

citations omitted)).   “A motion to alter the judgment need not be

granted unless there is an intervening change of controlling law,

new evidence becomes available, or there is a need to correct a

clear error or prevent manifest injustice.”   City of Moundridge,

244 F.R.D. at 12 (quoting Messina v. Krakower, 439 F.3d 755, 758

(D.C. Cir. 2006)).
                                -3-

     The False Claims Act provides that “[t]he Government may

dismiss [a qui tam] action notwithstanding the objections of the

[relator] if the [relator] 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 “function of a hearing when the relator

requests one is simply to give the relator a formal opportunity

to convince the government not to end the case.”    Swift v. United

States, 318 F.3d 250, 253 (D.C. Cir. 2003).   In this circuit, the

Government has, essentially, “an unfettered right to dismiss a

qui tam action,” based upon (1) separation of powers, (2) “the

Government’s broad discretion in initiating or continuing a

criminal prosecution,” (3) Federal Rule of Civil Procedure

41(a)(1)(i), which allows a plaintiff to dismiss a civil action

“without order of the court,” and (4) the fact that section

§ 3730(c)(2)(A) grants “[t]he Government,” not the court,

unilateral authority to “dismiss the action notwithstanding the

objections of the person initiating the action.”1   See Hoyte ex


     1
      In Hoyte, 518 F.3d 61, 65 (D.C. Cir. 2008), the court of
appeals noted that there “may be an exception” to the
government’s almost unfettered authority to dismiss a False
Claims Act claim for “fraud on the court.” Fraud on the court is
“a scheme to interfere with the judicial machinery performing the
task of impartial adjudication.” Synanon Church v. United
States, 579 F. Supp. 967, 972 (D.D.C. 1984) (quoting Pfizer, Inc.
v. Int’l Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976)).
“Fraud on the court is fraud which is directed to the judicial
machinery itself and is not fraud between the parties or
fraudulent documents, false statements or perjury.” Baltia Air
                               -4-

rel. United States v. Am. Nat’l Red Cross, 518 F.3d 61, 64-65

(D.C. Cir. 2008) (citing Swift, 318 F.3d at 252).

     Berg argues that the Order dismissing his case should be

reconsidered because the government’s decision to urge dismissal

was the product of a conflict of interest.   As an initial matter,

because Berg raised the issue of the purported conflict of

interest in his opposition to the government’s suggestion of

dismissal and at the June 2009 hearing (see Relator’s Brief in

Supp. of Opp’n to Mot. to Dismiss at 18), this is not a new issue

that could justify reconsideration.   “[W]here litigants have once

battled for the court’s decision,” they should [not be]

“permitted to battle for it again.”   Singh v. George Washington

Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (denying motion for

reconsideration stating, in part, “the court considered the cases

the [defendant] now cites,” and the defendant’s “attempt to re-

litigate this issue will not be countenanced”).




Lines v. Transaction Mgmt., 98 F.3d 640, 642 (D.C. Cir. 1996)
(quoting Bulloch v. United States, 721 F.2d 713, 718 (10th Cir.
1983)). Examples of the type of conduct deemed as fraud on the
court include “the bribery of a judge or the knowing
participation of an attorney in the presentation of perjured
testimony.” Baltia Air Lines, 98 F.3d at 643 (citing 11 Wright,
Miller & Kane, Federal Practice & Procedure § 2870 (1995)). 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.
Therefore, this potential exception is inapplicable.
                                -5-

     In any event, Berg does not show that rejecting his argument

was error.   To establish that there was a conflict of interest,

Berg cites two criminal statutes and one regulation that the

government attorneys allegedly violated.   The first statute, 18

U.S.C. § 205, “prohibits a federal employee from acting as the

‘agent or attorney’ of a private group in relation to a list of

proceedings such as an ‘investigation,’ ‘contract,’ or ‘other

particular matter’ in which the United States has an interest.”

Van Ee v. EPA, 202 F.3d 296, 299 (D.C. Cir. 2000); 18 U.S.C.

§ 205(a)(2), (h).   The second statute, 18 U.S.C. § 208, prohibits

employees of the executive branch of the U.S. government from

participating:

     personally and substantially as a Government officer or
     employee, through decision, approval, disapproval,
     recommendation, the rendering of advice, investigation,
     or otherwise, in a . . . 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 employment, has a financial interest[.]

18 U.S.C. 208(a).   The regulation, 5 C.F.R. § 2635.502, provides

in relevant part that:

     Where an employee knows that a particular matter
     involving specific parties is likely to have a direct
     and predictable effect on the financial interest of a
     member of his household, . . . and where the employee
     determines that the circumstances would cause a
     reasonable person with knowledge of the relevant facts
     to question his impartiality in the matter, the
     employee should not participate in the matter[.]
                                -6-

     The provisions cited by Berg do not justify reconsideration.

Section 205 pertains only to officers or employees of the United

States who act “other than in the proper discharge of [their]

official duties[.]”   See 18 U.S.C. § 205(a).   There is no dispute

that Department of Justice attorneys properly discharge their

duties by representing the United States in a qui tam action.2

In addition, Berg has not pointed to any specific financial

interest that the government’s attorneys have in the outcome of

this matter that would have caused them to be prohibited from

representing the government in an official capacity by 18 U.S.C.

§ 208 or 5 C.F.R. § 2635.502.   Berg argues that the Attorney

General has a financial interest because “if [the Attorney

General] allows this action to go forward, he is at great risk of

losing his position, which is a financial interest, as he would

lose his government pay.”   (Relator’s Mem. at 19.)    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.     Nor has he

cited any authority that a relator in a False Claims Act case can

raise speculation about a violation of any of these provisions as

an impediment to the government’s suggestion of dismissal.



     2
      As Justice Department attorneys over time have investigated
all manner of executive branch officials in civil and criminal
matters, it matters little on its face in the conflicts context
that the defendant in this qui tam action is the President.
                                  -7-

Cf. Hunter v. Dist. of Columbia, 384 F. Supp. 2d 257, 260 n.1

(D.D.C. 2005) (stating that 18 U.S.C. § 205 is a “criminal

statute[] that create[s] no private right of action”).

     Finally, Berg argues that the Order dismissing his case

clearly erred by failing to require the government to show that

dismissal was “rationally related to a valid purpose,” after

which the relator would have borne the burden to show the

decision to dismiss was “fraudulent, illegal, or arbitrary and

capricious,” a test adopted by the Ninth Circuit in United States

ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d

1139, 1145 (1998).   (Relator’s Mem. at 7.)    On two occasions, the

D.C. Circuit has explicitly declined to adopt the rational

relation test found in Sequoia.    See Swift, 318 F.3d at 252 (“We

hesitate to adopt the Sequoia test. . . .     [D]ecisions not to

prosecute, which is what the government’s judgment in this case

amounts to, are unreviewable.”); Hoyte, 518 F.3d at 65 n.4

(noting that “[i]n Swift, [the court of appeals] declined to

adopt the judicial review standard for a qui tam action endorsed

by the Ninth Circuit, under which the Government must initially

show that dismissal is ‘rationally related to a valid purpose’”).

Therefore, Berg has not shown that the failure to require the

government to meet the Sequoia test was clear error or caused a

manifest injustice to occur.
                               -8-

                           CONCLUSION

     Because Berg has not shown any intervening change of

controlling law, newly available evidence, or need to correct a

clear error or prevent manifest injustice that would warrant

reconsidering the dismissal of his case, his motion for

reconsideration [17] will be denied.    An appropriate order

accompanies this Memorandum Opinion.

     SIGNED this 21st day of September, 2009.


                                              /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
