UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
-------------------------------------------------------
                                                      :
UNITED STATES OF AMERICA                              :
         ex rel. HARRY BARKO                          :         CASE NO. 1:05-CV-1276
                                                      :
                  Plaintiff-Relator,                  :
                                                      :
vs.                                                   :         OPINION & ORDER
                                                      :         [Resolving Docs. Nos. 53 & 64]
HALLIBURTON COMPANY, et al.,                          :
                                                      :
                  Defendants.                         :
                                                      :
-------------------------------------------------------


JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

         Plaintiff-Relator Harry Barko, a former subcontract administrator for Kellogg Brown and

Root (KBR) in Iraq, brings this action alleging violations of the False Claims Act1/ by Defendants

KBR, its parent, Halliburton Company (Halliburton), related entities, and subcontractors Daoud &

Partners, Inc. (Daoud) and EAMAR Company (EAMAR). Barko says that Defendants engaged in

a scheme to defraud the United States by using a subcontracting procedure that vastly inflated the

costs of constructing laundry facilities and providing laundry services on at least three American

military bases in Iraq.2/ The KBR and Halliburton Defendants move to dismiss the complaint, saying

that Barko alleges only poor contracting practices, as opposed to actual false claims.3/ Defendant

Daoud also moves to dismiss the complaint, saying that this Court lacks personal jurisdiction over

it, that Barko fails to state a claim upon which relief can be granted, and that the law at the time of


         1/
          31 U.S.C. § 3729 (1994).
         2/
          Doc. 12, at 7.
         3/
          Doc. 53.

                                                          -1-
Case No. 1:05-CV-1276
Gwin, J.

the alleged violations shielded subcontractors from liability.4/ For the following reasons, the Court

DENIES both motions to dismiss. The Court also VACATES the existing protective order.5/

                                          I. BACKGROUND

       The facts as alleged in Barko’s seventy-eight page complaint are accepted as true for the

purposes of this opinion. In 2004, KBR, a private military contracting company, hired Barko to

administer contracts pursuant to the third generation of the United States’ Logistics Civil

Augmentation Program (LOGCAP III). Under LOGCAP III, KBR provided “logistical services such

as transportation, maintenance, facilities management, and dining facilities in support of military

operations around the world.”6/

       KBR worked with subcontractor Daoud & Partners on multiple projects.7/ On certain

projects, Daoud was the only bidder.8/ KBR and Daoud built and provided laundry services for

several military bases in Iraq.9/ KBR also hired Daoud to dig wells and construct a dormitory.10/ The

wells did not produce water, and the dormitory was poorly built.11/ Barko learned about these

projects while working for KBR in Iraq.

       In 2005, Barko left Iraq and sued Defendants under the False Claims Act. Barko says that

KBR and Daoud committed fraud by submitting false claims and faulty accounting to the United

States under the LOGCAP III contract. KBR and Daoud deny Barko’s allegations, and move this


       4/
        Doc. 64-1.
       5/
        Doc. 91.
       6/
        United States v. Kellogg Brown & Root Servs., Inc., 800 F. Supp. 2d 143, 147 (D.D.C. 2011).
       7/
        Doc. 12.
       8/
        Doc. 12.
       9/
        Id.
       10/
            Id.
       11/
            Id.

                                                    -2-
Case No. 1:05-CV-1276
Gwin, J.

Court to dismiss the claims.

                                             II. LAW & ANALYSIS

         To survive a motion to dismiss, Barko’s complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.”12/ This Court must refrain

from making any judgment about the probability of Barko’s success.13/ Rather, it must “assume all

the allegations in the complaint are true (even if doubtful in fact) and must give [Barko] the benefit

of all reasonable inferences derived from the facts alleged.”14/

         However, the allegations must allow this Court “to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”15/ “Facts that are merely consistent with a

defendant’s liability and demonstrate only a possibility, but not the plausibility, of relief fail to

satisfy this standard.”16/

         To prove a violation of the False Claims Act, Barko must show that Defendants either (1)

knowingly presented or caused to be presented to the government “a false or fraudulent claim for

payment or approval;” or (2) knowingly made, used, or caused to be made or used, “a false record

or statement to get a false or fraudulent claim paid or approved by the government.”17/ A claim

includes “any request or demand . . . for money or property” made to a contractor doing work on the



         12/
           RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 1043, 1048 (D.C. Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)) (alteration omitted).
         13/
           United States ex rel. Bender v. N. Am. Telecomm., 750 F. Supp. 2d 1, 5 (D.D.C. 2010).
         14/
           Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation
marks, alterations, and citations omitted).
         15/
           RSM Prod., 682 F.3d at 1048 (quotation omitted).
         16/
           Id. (quotation omitted).
         17/
           31 U.S.C. § 3729(a)(1-2) (1994). Unless otherwise noted, all references to the False Claims Act are to its
1994 codification. The Court will consider the effect of the current codification versus the 1994 version of the law when
discussing Daoud’s retroactivity argument.

                                                          -3-
Case No. 1:05-CV-1276
Gwin, J.

government’s behalf.18/ The knowledge requirement is satisfied if the person “has actual knowledge

of the information” or if he “acts in deliberate ignorance” or “reckless disregard” of the truth or

falsity of the information.19/ Barko must allege that the false statements were material to the claim

approval process.20/

          The False Claims Act is an anti-fraud statute, and complaints brought under it must comply

with specific pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure.21/ Rule

9(b) requires that Barko “state with particularity the circumstances constituting fraud or mistake.”22/

“Thus, to satisfy Rule 9(b), a False Claims Act relator must state the time, place, and contents of the

false representations, the facts misrepresented, and what was obtained or given up as a consequence

of the fraud.”23/ While Rule 9(b) constitutes a “heightened pleading standard,” it is “still subject to

the general short and plain statement command set out in Rule 8.”24/ Rule 9(b)’s particularity

requirement “does not completely vitiate the liberality of Rule 8.”25/

          KBR and Daoud both ask this Court to dismiss Barko’s claims. KBR says that Barko has

failed to state a claim upon which relief can be granted, since he did not provide enough factual




          18/
            31 U.S.C. § 3729 (1994).
          19/
            Id.
          20/
           31 U.S.C. § 3729(b)(3); see United States ex rel. Ervin and Assocs., Inc. v. Hamilton Sec. Group, 370 F.
Supp. 2d 18, 36 (D.D.C. 2005) (“The great weight of case law holds that the materiality of a false record or statement
is an element of False Claims Act liability.”).
          21/
           United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551-52 (D.C. Cir. 2002) (“Every circuit to
consider the issue has held that, because the False Claims Act is self-evidently an anti-fraud statute, complaints brought
under it must comply with Rule 9(b).”).
          22/
            Fed. R. Civ. P. 9(b).
          23/
            Bender, 750 F. Supp. at 6 (citing United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir.
1981)).
          24/
            United States ex rel. Brown v. Aramark Corp., 591 F. Supp. 2d 68, 72 (D.D.C. 2008).
          25/
            United States ex rel. Ortega v. Columbia Healthcare, 240 F. Supp. 2d 8, 18 (D.D.C. 2003).

                                                           -4-
Case No. 1:05-CV-1276
Gwin, J.

information to support his claims.26/ Daoud also says that Barko has failed to properly state a

claim.27/ In addition, Daoud says that this Court lacks personal jurisdiction, that service was

improper, and that the amendments to the False Claims Act cannot be applied retroactively.28/ The

Court considers each argument in turn.

A. KBR’s Motion to Dismiss

       Halliburton, KBR, and their related entities ask the Court to dismiss Barko’s claims on behalf

of the United States under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim upon

which relief can be granted.29/ KBR says that Barko failed to plead enough specific facts, as required

by Rule 9(b).30/ KBR says that Barko “does not allege facts suggesting that KBR knowingly

defrauded the Government.”31/ KBR says that, at best, Barko’s complaint alleges “poor contract

performance, not false claims.”32/

       Barko, however, provides a great deal of factual allegations to support his fraud claims.

Barko says that the LOGCAP III contract gives KBR incentives to increase the cost of operations,

because the contract provides KBR with an award of 3% of all costs.33/ Barko says that bidding was

faulty, with KBR manipulating the process to ensure that Daoud was either the only bidder or the

lowest bidder on numerous projects.34/ Barko identifies the specific contracts and subcontract work



       26/
         Doc. 53.
       27/
         Doc. 64-1 at 18.
       28/
         Doc. 64-1 at 7, 32.
       29/
         Fed. R. Civ. P. 12(b)(6).
       30/
         Doc. 53 at 10-12; Fed. R. Civ. P. 9(b).
       31/
         Id. at 12 (emphasis in original).
       32/
         Id. at 21.
       33/
         Doc. 12 at 10.
       34/
         Id. at 13-14; 31; 38-39; 50-51; 53-56; 58.

                                                      -5-
Case No. 1:05-CV-1276
Gwin, J.
that he says was fraudulent.35/

         Barko says that KBR and Daoud agreed to “Change Orders” that increased the value of the

contract through a practice of double billing for materials already purchased under the original

contract.36/ Barko provides a detailed accounting of these Change Orders, saying exactly how much

money was double billed.37/ Barko says that Daoud and KBR agreed to Change Orders to purchase

real property, but neither party ever had title because the facilities were located on military bases.38/

Barko says that the items in the Change Orders were falsely labeled in order to obtain approval.39/

Barko discusses specific subcontracts for the projects he mentions,40/ and gives the names of KBR

employees who worked on the projects, as well as quotes from documents in the project files.41/

Finally, Barko says that KBR and Daoud passed these increased costs on to the United States.42/

         Although KBR attempts to put a more positive spin on the allegations, Barko gives sufficient

facts to survive a motion to dismiss. While the Court need not accept Barko’s legal conclusions, his

factual allegations, if believed, support plausible fraud claims. Barko has sufficiently pleaded facts

to support his claims of “fraudulent attempts to cause the government to pay out sums of money.”43/

Because his claims are plausible, they will not be dismissed.


         35/
           Id. at 9 (laundry facilities at Camps B1, B2, &B3); 32 (the B6 Man Camp subcontract for a dormitory); 58
(subcontract to drill wells at B1, B3, B4, & B7).
         36/
           Id. at 9.
         37/
             Id. at 19-20 (at least $1,093,920 in double billing for the B1 project); 24-25 (at least $758,909 in double
billing for the B2 project); 28 ($727,186 in double billing for the B3 project).
         38/
           Id. at 19, 24, & 28.
         39/
           Id.
         40/
           Id. at 14 (subcontract numbers for the laundry camp construction); 36 (subcontract number for the Man Camp
dormitory); 42-44 (work release numbers under the Master Labor Agreement); 54 (subcontract number for a Master
Labor Agreement).
         41/
           Id. at 12-13; 16; 33-38; 40-42; 51-57.
         42/
           Id. at 10.
         43/
           United States ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 297 F.Supp. 2d 272, 278 (D.D.C. 2004)
(discussing United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C. Cir. 1995)).
                                                          -6-
Case No. 1:05-CV-1276
Gwin, J.
B. Daoud’s Motion to Dismiss

         1. Failure to State a Claim

         Daoud moves to dismiss Barko’s complaint under Rule 12(b)(6) for failing to state a claim

upon which relief can be granted.44/ Daoud says that Barko provides only “speculative and

conclusory allegations.”45/

         As Daoud notes, the Supreme Court ruled on a False Claims Act case prior to the

amendments.46/ In that case, the Court considered whether a subcontractor was liable in a plaintiff’s

False Claims Act qui tam action.47/ The Court said that, in order to be liable under § 3729(a)(2), the

claim must be paid by the government but need not be submitted to the government directly.48/

Rather, the Court said that “a subcontractor violates § 3729(a)(2) if the subcontractor submits a false

statement to the prime contractor intending for the statement to be used by the prime contractor to

get the government to pay its claim.”49/ If a subcontractor intends to defraud the government, it does

not matter if the false claim was submitted to the government through a contractor. The False

Claims Act thus covers both direct and indirect attempts to defraud the government.

         As described in Barko’s complaint, Daoud’s actions plausibly violated the False Claims Act.

Barko sued both the contractor and subcontractor, KBR and Daoud. Barko says that Daoud intended

to defraud the government, not the contractor with whom it collaborated to perpetrate the fraud.50/


         44/
           Doc. 64-1 at 18; Fed. R. Civ. P. 12(b)(6).
         45/
           Doc. 64-1 at 27.
         46/
           See Allison Engine Co. v. United States, 553 U.S. 662 (2008).
         47/
           Id. at 662.
         48/
           Id. at 671 (“While § 3729(a)(1) requires a plaintiff to prove that the defendant ‘present[ed]’ a false or
fraudulent claim to the Government, the concept of presentment is not mentioned in § 3729(a)(2).”).
         49/
           Id.
         50/
            See Doc. 12 at 66 (“Defendants have caused the submission of false claims in violation of 31 U.S.C. § 3729
et seq., by charging twice for the same facilities, materials, buildings and other property and labor already purchased
under the terms of the original contracts.”).
                                                         -7-
Case No. 1:05-CV-1276
Gwin, J.
Barko provides enough factual allegations to support his claims. Barko says that Daoud and KBR

agreed to “Change Orders” to purchase real property, but neither party ever had title because the

facilities were located on military bases.51/ Additionally, Barko says that Daoud and KBR created

Change Orders that added charges for goods and services that KBR had already purchased.52/ Barko

says that Daoud and KBR agreed to add these costs because “KBR could pass these costs along to

the United States Government.”53/ Barko provided a “detailed description of the specific falsehoods

that are the basis for his suit,” and as such, he has sufficiently stated a claim upon which relief can

be granted.54/

         Daoud argues that a subcontractor cannot be found liable under the False Claims Act. Daoud

cites two cases. Both actually support a claim that Daoud could have violated the False Claims

Act.55/ Daoud says that, in Allison Engine Co. v. United States, 553 U.S. 662 (2008), the Supreme

Court held “that subsection (a)(2) did not reach subcontractors whose false records or statements

resulted in the payment of government money.”56/ Daoud misstates the Court’s holding, however.

The Allison Engine Court actually held that “a subcontractor violates § 3729(a)(2) if the

subcontractor submits a false statement to the prime contractor intending for the statement to be used

by the prime contractor to get the Government to pay its claim.”57/ A subcontractor can violate the

False Claims Act if it presents false documents to a contractor so that the Government approves a



         51/
           Id. at 19, 24, & 28.
         52/
           Id. at 9.
         53/
           Id. at 7.
         54/
           Bombardier Corp., 286 F.3d at 552.
         55/
            See Allison Engine, 553 U.S. 662 (requiring that a subcontractor intend to defraud the government, not the
contractor to whom it submits false claims, for liability under the False Claims Act); Bombardier Corp., 380 F.3d 488
(holding that § 3729(a)(1) and (a)(2) require the subcontractor intend to have the government pay the false claims).
         56/
           Doc. 64-1 at 40.
         57/
           Allison Engine, 553 U.S. at 671.
                                                         -8-
Case No. 1:05-CV-1276
Gwin, J.
claim,58/ which is exactly what Barko accuses Daoud of doing.59/ The cases Daoud cites to support

its argument actually bolster the finding that it could have violated § 3729(a)(2).

        Daoud is correct to point out that Barko does not allege Daoud’s involvement in Claims II,

VIII, and X.60/ But it does not follow that the Court will dismiss the claims altogether, as Daoud

seems to suggest. Daoud need only concern itself with claims to which it is a party. Barko’s claims

against Daoud are sufficiently well-pleaded to survive a motion to dismiss.

        2. Lack of Personal Jurisdiction

        Daoud also says that the Court lacks personal jurisdiction over it. Daoud is located in Jordan

and does business primarily in the Middle East.61/ Daoud says that it lacks the necessary “minimum

contacts” to be subject to an action in an American court.62/

        As Daoud notes in its motion, “[i]n False Claims Act cases, ‘the relevant inquiry is whether

the defendants have minimum contacts with the United States as a whole.’”63/ A court can exercise

personal jurisdiction over a defendant when doing so would not “offend ‘traditional notions of fair

play and substantial justice.’”64/ It does not offend traditional notions of justice to exercise personal

jurisdiction when “the defendant himself” makes “a ‘substantial connection’ with the forum.”65/ A

court has personal jurisdiction when a defendant’s contact with a forum is so significant that the



        58/
           Id.
        59/
           See Allison Engine, 553 U.S. 662.
        60/
           Doc. 64-1 at 26.
        61/
           Id. at 15.
        62/
           Id. at 16.
        63/
          Id. at 15 (quoting United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 976 F.Supp. 207,
210 (S.D.N.Y. 1997)).
        64/
           Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)).
        65/
           Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting McGee v. Int’l Life Ins. Co., 355 U.S.
220, 223 (1950).
                                                        -9-
Case No. 1:05-CV-1276
Gwin, J.
defendant “should reasonably anticipate being haled into court there.”66/ When a party has the

required minimum contacts with a forum, jurisdiction “may not be avoided merely because the

defendant did not physically enter the forum.”67/

         Daoud had enough contact with the United States Government that it could reasonably

anticipate being brought into a suit in the United States. Since 1999, Daoud has registered as a

subcontractor with and worked for the U.S. Government.68/ On at least one occasion, Daoud’s

employees have traveled to the United States for business meetings with KBR officials.69/ While

working with KBR, Daoud performed over $159 million worth of U.S. Government subcontracts.70/

Daoud has worked with other American companies as well.71/ In order to increase its business with

American contractors, Daoud established an English-language website.72/

         Considering all of its contact with the United States Government and citizens, Daoud could

reasonably anticipate being haled into federal court. Daoud has directly targeted American

companies and purposefully availed itself of government subcontracting opportunities. At least one

other federal court has already held that Daoud is subject to its personal jurisdiction.73/

         Daoud cites the Supreme Court for the proposition that “‘general jurisdiction is appropriately

exercised’ only in a forum ‘in which the corporation is fairly regarded as at home.’”74/ The case


         66/
           World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
         67/
           Mwani v. bin Laden, 417 F.3d 1, 12 (D.C. Cir. 2005) (quoting Burger King Corp., 471 U.S. at 477).
         68/
           Doc. 69 at 9.
         69/
           Doc. 107 at 16; Doc. 111 at 23.
         70/
           Doc. 111 at 16.
         71/
           Doc. 106 at 22.
         72/
           Doc 69 at 15-16.
         73/
            See Adhikari v. Daoud & Partners, No. 09-cv-1237, 2012 WL 718933, at *2 (S.D. Tex. Mar. 5, 2012)
(“[T]he Court conducted an in-depth analysis of Daoud’s contacts with the United States, ultimately concluding that these
contacts give rise to this Court’s general personal jurisdiction over Daoud.”).
         74/
            Doc. 107 at 10 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846 (2011).
                                                         -10-
Case No. 1:05-CV-1276
Gwin, J.
Daoud cites, Goodyear, is distinguishable from this case. In Goodyear, the plaintiff argued that the

court had personal jurisdiction over the foreign defendant based on a few products that made their

way to the forum in the stream of commerce.75/ Here, Daoud has done a good deal of business with

American corporations and the United States Government. Daoud’s website, its contracts with KBR

and other corporations, and its contracts with the Government all indicate that Daoud has

purposefully availed itself of the United States. Therefore, Daoud is subject to suit therein.

         3. Improper Service

         Daoud next argues that Barko’s complaint should be dismissed under Rule 12(b)(5) of the

Federal Rules of Civil Procedure for insufficient service of process. Specifically, Daoud says that

service conflicted with Jordanian law, which does not allow for service by email or fax.76/ Daoud

says that service by fax or email is only proper when the plaintiff can demonstrate “likely futility of

attempts to serve citizens” of a foreign nation.77/

         Federal Rule of Civil Procedure 4(f)(3) authorizes a court to permit service on a party in a

foreign country “by other means not prohibited by international agreement, as the court orders.”78/

This rule is “neither a ‘last resort’ nor one of ‘extraordinary means,’” but is “merely one means

among several which enables service of process on an international defendant.”79/ Daoud concedes

that Jordan is not a signatory to the Hague Service Convention,80/ an international agreement that



         75/
           Goodyear, 131 S.Ct. at 2854-55.
         76/
           Doc. 64-1 at 20.
         77/
            Id. at 21 (discussing Nabulsi v. H.H. Sheikh Issa Bin Zayed Al Nahyan, No. H-06-2683, 2007 WL 2964817,
at *7 (S.D. Tex. Oct. 9, 2007)).
         78/
           Fed. R. Civ. P. 4(f)(3).
         79/
           Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002). See also Williams v. Advertising
Sex, LLC, 231 F.R.D. 483, 486 (N.D.W.Va. 2005) (holding that a plaintiff’s petition for service under Rule 4(f)(3) “may
proceed without seeking service under the other provisions of Rule 4(f)”).
        80/
           Doc. 64-1 at 24.
                                                         -11-
Case No. 1:05-CV-1276
Gwin, J.
governs service of process over foreign citizens 81/.

         The Court has already found that Barko showed good cause to serve Daoud in this manner.82/

Service of process on defendants by electronic mail can be proper, as it was here.83/ Daoud’s

argument to the contrary is weak at best. Daoud says that, when a foreign defendant is to be served,

“an earnest effort should be made to devise a method of communication that is consistent with due

process and minimizes offense to foreign law.”84/ Daoud says that the service here was improper

because Jordanian law does not allow service by email. The Advisory Committee foresaw this type

of situation; as Daoud’s own memorandum notes, service should minimize offense to foreign law.85/

The Court took foreign law into consideration and limited any offense to Jordanian law. Service by

email might be improper if this Court were located in Jordan, but without an international agreement

to the contrary, this Court can authorize a plaintiff to serve a defendant by the necessary means per

Rule 4(f)(3).86/

         The means of service are not prohibited by international agreement and were deemed

appropriate by the Court. Service of process was proper under Rule 4(f)(3).

         4. Retroactivity of amendments to the False Claims Act

         Daoud’s fourth and final argument is that the recent amendments to the False Claims Act


         81/
            See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988) (“The primary innovation of
the Convention is that it requires each state to establish a central authority to receive requests for service of documents
from other countries. Once a central authority receives a request in the proper form, it must serve the documents by a
method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible
with that law”).
         82/
           The Court’s Minute Order of June 3, 2009 authorized Barko to serve Daoud by email.
         83/
           See Rio Props., 284 F.3d at 1015.
         84/
           Doc. 64-1 at 23 (quoting Fed. R. Civ. P. 4 advisory committee’s note (1993)).
         85/
           Id. at 23.
         86/
            See Rio Props., 284 F.3d 1007; U.S. Commodity Futures Trading Comm’n v. Aliaga, 272 F.R.D. 617, 619
(S.D. Fla. 2011) (“Service may be accomplished under Rule 4(f)(3) as long as it is (i) ordered by the court, and (ii) not
prohibited by an international agreement.”).
                                                          -12-
Case No. 1:05-CV-1276
Gwin, J.
cannot apply retroactively. In 2009, Congress passed the Fraud Enforcement and Recovery Act,

which amended the False Claims Act.87/ The amendment says that § 3729(a)(1)(B) applies “as if

enacted on June 7, 2008, and appl[ies] to all claims under the False Claims Act . . . that are pending

on or after that date.”88/ Daoud says that, if the amendments are applied retroactively, it would

violate its Ex Post Facto and Due Process rights.89/

         The Court need not address that issue, however. The Fraud Enforcement and Recovery Act

states that § 3729(a)(1)(B) applies “to all claims under the False Claims Act” pending on or after

June 7, 2008.90/ Claim is defined in the statute as “any request or demand” for money from the

government or an agent spending the money on behalf of the government.91/ The retroactive

provisions apply, then, to fraudulent requests for money pending on or after that date.92/ Barko’s

complaint does not allege that any of KBR or Daoud’s false claims were pending on or after that

date. Only Barko’s lawsuit was pending on that date, and the amendment does not apply to court

cases pending on that date.93/ This Court joins those courts that have so held.94/

         Thus, the Court will apply the version of the False Claims Act as it existed when Barko


         87/
            Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4 (2009). § 3729(a)(2) in the previous
version of the False Claims Act was replaced with § 3729(a)(1)(B).
         88/
           Id.
         89/
           Doc. 64-1 at 41.
         90/
           Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4 (2009).
         91/
           Id.
         92/
           Id.
         93/
             Id. This distinction between “claims” and “cases” is evident in the FERA. The amendments to § 3729(a)
retroactively apply “to all claims under the False Claims Act,” while the amendments to § 3731(b) apply “to cases
pending.”
          94/
             See United States v. Sci. Applications Int’l Corp., 653 F.Supp. 2d 87 (D.D.C. 2009) rev’d on other grounds,
626 F.3d 1257 (D.C. Cir. 2010); see also Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1327 n.3 (11th Cir. 2009)
(“While this case was pending on and after June 7, 2008, the relators do not allege that any claims, as defined by
§ 3729(b)(2)(A), were pending on or after June 7, 2008. Therefore, we conclude the Fraud Enforcement and Recovery
Act does not apply retroactively to this case.”); United States ex rel. Carpenter v. Abbott Labs., Inc., 723 F.Supp. 2d 395,
402 (D. Mass. 2010) (“[S]ubsequent case law has almost uniformly interpreted “claims” to mean claims for
reimbursement.”).
                                                           -13-
Case No. 1:05-CV-1276
Gwin, J.
began this action.

C. The Protective Order

       The parties have stipulated to a protective order covering documents that they say could

disclose “confidential, trade secret, or other proprietary business or financial information.”95/ The

Court previously granted the protective order.96/ Granting a protective order is within the Court’s

discretion, but that discretion must be limited by “the citizen’s desire to keep a watchful eye on the

workings of public agencies.”97/ A court can grant a protective order “only when essential to shield

a party from significant harm or to protect an important public interest.”98/ A court must tailor a

protective order so that it restricts access no more than necessary.99/

       Here, the parties have failed to show that disclosure of particular information would cause

serious harm. Instead, the parties would allow any party to “designate as ‘Confidential Information’

any information, document, or material” that the party believes to be confidential.100/ A party’s belief

is not enough to show that public disclosure of any information might cause serious harm. Nor is

the protective order sufficiently narrow when any party can restrict any document.

       The parties may move to seal individual documents provided that the requisite particularized

showing is made. For example, upon a proper motion, the Court will consider limiting public

disclosure of information that is trade secret. But the showing required to seal documents is great

and approval for sealing documents will seldom be given. The Court will not simply grant the



       95/
          Doc. 90.
       96/
          Doc. 91.
       97/
          Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).
       98/
          Doe v. District of Columbia, 697 F.2d 1115, 1119 (D.C. Cir. 1983).
       99/
          Id.
       100/
           Doc. 90.
                                                     -14-
Case No. 1:05-CV-1276
Gwin, J.
parties blanket authorization to cloak the entire case under a veil. The Court thus VACATES the

protective order.101/

                                               III. CONCLUSION

         For the foregoing reasons, the Court DENIES both motions to dismiss and VACATES the

existing protective order.

         IT IS SO ORDERED.



Dated: July 8, 2013                                   s/       James S. Gwin
                                                      JAMES S. GWIN
                                                      UNITED STATES DISTRICT JUDGE




         101/
             In keeping with the parties’ reasonable expectations at the time of filing, all documents previously filed
under seal will remain under seal.
                                                        -15-
