have not yet known the jury awarded this release to david lilly under three separate whistleblower protection statutes and i'd like to start with the false claims act because the other two laws actually have a wider scope of coverage that will make the analysis easier once the false claims act issue is addressed and today the false claims act has to promise of protection but the nd problem was added b amendment in two thousand and nine so many of the older cases in this area were looking only at the st prong which protects acts in furtherance of an action under the false claims act so it was tethered to the action for relief under the false claims that but in two thousand and nine as part of a movement of other whistleblower laws that congress was acting to enhance whistleblower protections and try to build a culture of corporate compliance in this country after the enron scandal odd expanded this scope of protection to include and effort to stop one or more violation they this this provision is until they're from the actual proceedings in a false claims that and it looks to trying to prevent these violations from actually arising in the st place who want violations what lockheed martin proprietary files without lockheed martin permission ok so i assume assume that he believed that for reasonably believe that for the moment yes we can get to later whether he had a reasonable basis for believing that tell me why that fits with i'm asking you a legal question he asked the acts prohibit you prohibit being punished for revealing something in a fusion of power you know things like that tell me me finish or you don't dispute that the facts stated which is the information it came from the mag court files was accurate what you're saying is they just covered up where it came from that's why there's that of why is that a material materially false statement well st let me say that the two thousand and nine amendment specifically took away the requirement that you establish materiality because the idea's going to stop violations before they become material ok now i'm still i'm still back to struggling with what's a while a should what's the false statement here but the false statement is is the attempt by his superiors to pass along the work product be lucky proprietary most likely not close friend and then he heard that some lockheed proprietary doctor or the such lockheed proprietary documents looks like he's not even saying that he thought they were proprietary documents also i'm having trouble understanding as is judge her wits ask you questions about exactly what the fraud or false statement is all all of mathcad spreadsheet is is a checking device and when lockheed was asked they didn't say you can't use them or you have to pay us if you want to use them always said was you don't have the power supply you need prohibited from using them you can just tell us give us a record cite because i haven't seen it yeah yeah i didn't see it either excerpts of the record page one  ten this is page seventy one of the transcript lines and she got a response from marky mark and she related to try brown contractors are for didn't use these files that was the testimony at one  provenance but he goes on at the end of the nd paragraph you specifically releases the concern about fraud when he says that tribe around asked him to use the files covertly so i notice that i was about to to get to you with that all i could see about that is that it would really excited jury because it sounds like something out of a movie but using the files without seeing you using the files i'm still having trouble figuring out what the fraud is i mean i'm thinking what a mathcad file is and frankly i've never used that app because i'm not an engineer i don't need to but as i understand it all it is is a spreadsheet that can handle more complex mathematical notation and more complex mathematical calculation than the kind of spreadsheets we all use and the engineers like it because it saves work and of checks work on am i missing misunderstanding what it is ye where the violation arises it is it is a basically a spreadsheet with the additional capabilities of being able to handle more mathematical notation and more complex calculations than an ordinary spreadsheet to be honest with you i have never worked with mathcad files i'm not an engineer a miner standing is there quite a bit more oh i figured you probably would have rented it for a month in preparing the case and figured out how to use it i know that about half but take a look at the previous section the false claims act which outlines the violations thirty one united states code three thousand seven hundred and twenty nine and if you look at paragraph a one b it says to me that that it's a violation to knowingly make use or cause a false record or statement material to a false claim and but i'm shocked so now i'm still back to this question where's the false record or statement on there's an omission here which is to say the internal memorandum which let's treat it as if it's a statement to the government for the moment is internal memorandum doesn't say what the source of the material is but it nobody's contending the materials inaccurate so what's the false if i if i say to judge whom attack a your car was going sixty miles an hour yesterday and i don't disclose to him how i got the information does that if if man tech and j p l had gotten away with this what was just stop them from billing the government for the work of preparing that mathcad file that lockheed martin had already prepared and if lilley understood that to be a misrepresentation about the provenance of the data he was using to conceal the violation of lockheed martin rights in this matter after he had been specifically trained by linda facto in the impromptu meeting that th needed to be compliant and respectful of these lockheed martin rights and this is what his central concern was he was afraid for his security clearance that it would get yanked if the government found out he had participated in this false the covert here the what you call covert use just a use of a spreadsheet that somebody else had built in the juno project the rather than this one it looks like it's cutting  employer's bills to the government instead of expanding them as employers on in time and materials contract and that if they can piggyback some of their work on work that's already been done in the juno project they spend less time and cost less money for the government once a problem well david literally had no training that was actually open same as to the government and that's precisely the concern i raised which is that david lilley wanted to make sure that they were  you're you're saying there's a false claims act claim or at least the expanded whistleblower protection act claim where the employer is not ripping off the government the employer is saving the government money but the employee suspects they may rip off the government even though he's never said that he thought them a rip off the government will never sign of that they were charging the government could the work that the spreadsheet say but you're saying that require thought maybe there's some fishy going on and they might rip off the government that's enough for the whistleblower protection act exactly i'd like to look at it as the direction you're fighting and if you were his actions in refusing to sign off or at least threatening to refuse to so finish up on that topic if you can what is the evidence that mr louis was fired because of whatever he did other than the proximity in time files and she turns her back on him and says you know i'm going to have to work and work on that and turns her back on him until he leaves the office you know that i think you're so your evidence is her turning her back on him and the proximity in time office and their work wasn't there eric burke says oh yes we had a meeting but he can't remember any other thing of substance and i don't see how that i don't see how that establishes that he was fired because of whatever protected there long enough so that if maybe the higher up a got of the bathroom he'd have time to come back i frankly don't know but i think the jury co write it in for it could be that we're making a big colbert's spy story thing out of some guy going to the want to get back to the proximity in time because that was the question i wanted to ask it just to even answer this factually we don't have to argue about it's i can look at the cases the he was fired when he was actually fired in february of a firing in february for conduct that ended in october well yes but in this context as you also know yes but the furlough in december is also relevant because it shows a pattern of anyway so what you're but it's part of the evidence the jury considered in it considering the pattern of activity and then you definitely need to look at the april decision by mannatech to deem and in eligible for a higher that is what has ruined his career and  argument is that he did something in october and they took the i burst action in february is that your proximity argument yes but that's not all of it you have to look at the whole context of the evidence the whole record trying to tell you what what tell me  earlier adverse action they took against him that counts before february well the resistance to his concerns that they wouldn't that's not an adverse accurate for a resistance resistance is your professional in this area he was fired that's right but it's it's evidence of animists it's that's the evidence of causation that they were i answered as you keep answering the question that i asked two times ago i'm just asking about proximity right now described a standard as requiring a federal official to have to gain personal personal gain or advantage himself or prefer other persons the statute doesn't require that at all it just requires an arbitrary  protection in there quite a bit broader than what the district court allow and include for example a violation of law or abuse of authority which i think sweeps in the concerns that it really expressed here so under the correct standard what do you what  it seems to me that the district judges definition of abuse of authority was incorrect that the act indeed the defense contractors  defines abuse of authority differently than the way the district judge did tell me of both judgment and i correctly read they read the act that way and if so what the judge's ruling for a few reasons well and i think it's important to know that this argument that we just heard was not made in front of the district court we mr weat to the the base took analysis that the judge applied and she did so with respect to each one of these courses of action and also i wonder how does this really need not make that argument if that the district court ruled on it read that this was an abuse of the board number that's only that that's a legal conclusion so i guess my question is assuming it wasn't waived why wasn't does does the evidence at trial taken to know i was favor of this to mr lilley establishing of an abuse of authority or one of the or any of the other things in the whistleblower act that might give rise to liability i think of authority is the only one because i don't think there's any plausible allegation or a violation of the law although mr maybe mr retter can can enlighten me i think at the end he was saying there was but let's not focus on abuse of authority  is this let's assume that everything he says is true was he reporting it abuse of authority or merely a possible breach of contract between j p l and lockheed a or whatever the acronym is and it's really big all we need to is to reasonably believe you don't have to be right that and to disclose to a person or body described evidence of gross mismanagement or abuse of authority and abuse of authority is any arbitrary capricious exercise of authority inconsistent with the mission  or arbitrary and capricious exercise well they're not different now what he apparently believes it's a little hard to say because some of the stuff sounds a little  excessive but what do you apparently believes is that his company man tech is using propre proprietary information of lockheed's without permission and he's disclosing that he's making a fuss over it me thinks he's being ultimately fired and made ineligible for rehire because he raised that issue now what i want to know is it seems like since he doesn't have to he don't have to prove that he was right just that he reasonably believed it and based on the ambiguity in the e mails he might have reasonably believed that they were using proprietary information that and i would think that they would have to in order to turn square corners they'd have to get somebody to talk to lockheed and pay them enough so they could use the spreadsheet from the juneau project with permission why isn't that gross mismanagement or abuse of authority to punish him by making him ineligible for rehire because see if if they in fact did that's the separate definition the definitions are in the statute here not yet so what you're saying is that that case set out the language that is now incorporated in the definition section of the defense contractor whistleblower protection act so that really has moved us forward help me more on my question why isn't covering up the use of proprietary information within that definition well mr mr miller was concern be left holding the bag for some kind of misuse of proprietary information so he starts fussing about it so he won't be left holding the bag at least that's how i read the record for when he doesn't that using the spreadsheet without saying that it was the spreadsheet that lockheed had developed for the juno project that was set proprietary i understand that but the issue is whether or not what they were gross mismanagement  doesn't necessarily rise to the level of mismanagement and it certainly doesn't rise the wave of gross mismanagement of why not there's a lot of secrecy about space because of the potential military implications of space because that will open up this statute to everything under the sun and that that's not what what this statute does or the other ones they it would just mean that when you're working on a defense contract you turn square corners there's proprietary information you get it in writing you're allowed to use it that's all it would mean in the context of this case i understand that the again the the issue here is how this work product or something of that nature i would point out that you know your family my question was not just about the money because i think it's there nothing in the record pursued just anything other than that man tech was go government money and by saving itself time by using the spreadsheet actually what aroused my interest more was the book tensional military risk of anybody going  beyond what they were allowed to use and and something like a spread sheet circulating beyond words opposed to circulate engineers use the spreadsheets to check the work that check their calculations th it my question following up on judge klein thoughts questionis i take it there's no con there's no contention in this case that the the information was anything but proprietary information of lockie in other words there's no contention that it was government secret information is there now there's not information is was subject to non disclosure except because of it whatever agreements lockheed and j p l had right that's exactly right and that was the point i was trying to make it ok so getting back to the original getting back to the original point why it let's assume that mr louis reasonably thought that j p l was ignoring its obligations to lockheed under the confidentiality agreement they have i know you don't think you reasonably thought that those soon after purposes of my question is is that an abuse of authority contractor here that federally funded so i'm not sure why the fact that j p l isn't itself technically a federal isn't technically nasa makes any difference why does it make a difference  it makes a difference but i wanted to note that under the under the definition of gross mismanagement for instance is no i don't think it's gross misspent i was asking about gross mismanagement i think the word gross fair means really really bad i'm talking about abus that man take didn't know he'd gone to the two congressmen that had judy chu and i can't remember who the other one was so you can't very well punish them for going to those two authority s to be fair disclosure to a person or body described in paragraph two in paragraph two says member of congress inspector general government accountability office employee of the department of defense authorized official of the department of defense that's why i focused like a quarter grand jury or management official and obviously i focused on judy chukkas a member of congress so what you're saying is we should just look at management official or other employee of the contractor that's the only disclosure at issue the only prescribe sure that's related to whether van thank was put on notice i would certainly  subjective belief as well as an objectively reasonable one that he was wrong are you saying are you saying they punished him for going to the ethics committee now i know i am for using they didn't punish him for going to be thank you for that requirement there acquirement for david lilly is to show that the employer had knowledge of protected activity and the berkeley email october th two thousand and fourteen i don't think that describes the whole record because after he was fired there were issues about the return of his equipment and property and congressman shoes office arranged for that so at that point when they deemed him in eligible for rehire by that point they had knowledge of his communications to member but i want to go back to what what your colleague argued the only report that would give lott rise to liability in your view or am i wrong is the report to his supervisors at least for his firing at least for his firing his report to the g p l person is is not don't fire someone after for a lot no but i'm trying to figure out what evidence was before the jury that he had made a report to the j p l supervisor well he he testified to make that report but isn't that is that a qualifying report he wasn't fired for making that report because he was qualified for making that he was fired for making the report to his supervisors right  so i mean he's not fired for talking to her he's fired in your view because he went to his boss and said i think there's there's wrongdoing going on here or she says to him she doesn't take any adverse action she doesn't report anything to his boss all he tells his boss all she says to him is yes go to the information that's good source so that's not that's not an event that leads to a firing it's the report to his boss that he's  this stuff that leads to the firing right i think it's a mistake to try to parse protected activity this way and the th circuit and demands for explain how it really is more appropriate to look at protected activity as a whole and the adverse action and then assess causation and that's really the appropriate function of the jury is to consider the record as a whole d and the inference is that are reasonable to draw from and i think that's the more appropriate way to analyze it rather than this type of piecemeal or di section of the protected activities and the elements of causation no i guess i'm asking a different question i'm asking if he if his boss had never found out that he had reported to j p l you would he made man tech aware of his refusal to participate in a kind of live look at the burger thing and it seems to be well maybe if i wasn't sure i reported to them and so now i'm e and the jury instructions neither party made any objection to the jury instructions that are at issue here and if you look at the five of the excerpts of the record the jury was properly instructed on the standard for the defense contractor whistleblower protection and they made the finding based on the record as a whole i you know we think that decision was correct it was error for that as a matter of law for the district court to set that aside after the jury had been properly instructed and reached a decision based on the correct understanding of the law and if i may just squeeze in two more points you can squeeze in one sort of part my client was not objecting to merely a breach of a contract with lockheed martin they had patent rights at issue here and that's in the record at pages one hundred and three thousand one hundred and sixty eight of the excerpts of the record where the testimony shows that these were patent protections of lockheed martin that were being  linda fact those impromptu meeting on july rd he won d from that point he understood that there was you know law or at least a rule here that he had to obey and that training comports with the  protection for disclosing a violation of law or rule in the defense contractor law and the california statute thank you mr renner thank you thank you both counsel for their briefing in arguments this case will be submitted