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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

UNITED STATES OF AMERICA 

and THE STATE OF FLORIDA, 

ex rel. ROBERT V. SMITH, 

Qui Tam Plaintiff, 

v. CASE NO.: 3:20-cv-03678/MCR/ZCB 

JAY A. ODOM; OKALOOSA 

COUNTY, BOARD OF COUNTY 

COMMISSIONERS, 

 Defendants. 

__________________________________________________________________ 

PLAINTIFFS’ OPPOSITION TO DEFENDANT, JAY ODOM’S REQUEST 

FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS 

__________________________________________________________________ 

 Plaintiffs, United States of America and the State of Florida, ex rel. Robert V. 

Smith (“Relator”), by and through undersigned counsel, files this Opposition to 

Defendant, Jay Odom’s (“Odom”) Request for Judicial Notice in Support of Motion 

to Dismiss (the “Opposition”). In support of his Opposition, Relator states: 

ARGUMENT 

 Odom seeks judicial notice of 11 documents pursuant to Federal Rule of 

Evidence 201, which provides: 

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A judicially noticed fact must be one not subject to reasonable dispute 

in that it is either (1) generally known within the territorial jurisdiction 

of the trial court or (2) capable of accurate and ready determination by 

resort to sources whose accuracy cannot reasonably be questioned. 

A district court may consider an extrinsic document on Rule 12(b)(6) review 

“if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged[,]” 

U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015). Hi-Tech 

Pharms., Inc. v. HBS Int'l Corp., 910 F.3d 1186, 1189 (11th Cir. 2018) (“Under the 

doctrine of incorporation by reference, the Court may also consider documents 

attached to the motion to dismiss if they are referred to in the complaint, central to 

the plaintiff's claim, and of undisputed authenticity.”). 

Relator objects to Exhibit B, FAA Order 5190.6B, Airport Compliance 

Manual (“FAA Compliance Manual”), because it is incomplete. Relator seeks 

judicial notice of additional sections of the Compliance Manual. Fed. R. Evid. 106. 

Moreover, the FAA Compliance Manual was revised on November 21, 2021. This 

case spans a time period both before and after November 21, 2021. In that regard, 

the version of the FAA Compliance Manual prior to November 12, 2021 also is 

relevant to this action. Relator seeks Judicial Notice of additional sections of the 

revised and earlier versions of the FAA Compliance Manual since both are relevant 

to this case.1

1

 Relator is filing a separate Request for Judicial Notice and will attach copies 

of relevant sections of both versions of the FAA Compliance Manual. 

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Relator also objects to the authenticity of Exhibits D, E, F, G, H, I, K. These 

documents, which are not certified or accompanied by a custodial statement, appear 

to be state public records, but it is unclear if the documents are complete, 

authenticate copies. These documents require authentication and are not considered 

self-authenticating as submitted. See Fed. R. Evid. 901 (requiring evidence that the 

public record is from the office where items of this kind are kept to satisfy 

authenticating or identifying public records); Fed. R. Evid. 902 (document is selfauthenticating if it is a “copy of an official record — or a copy of a document that 

was recorded or filed in a public office as authorized by law — if the copy is certified 

as correct); Advisory. Cmt. to Fed. R. Evid. 901 (“Public records are regularly

authenticated by proof of custody, without more. McCormick §191; 7 Wigmore 

§§2158, 2159.”). Odom has not proffered certified copies or other evidence to 

establish proof of custody, completeness, or authenticity of these documents. 

Moreover, it appears that Odom seeks to judicially notice documents for an 

improper purpose regarding his argument on the public disclosure bar. For analysis 

of public disclosure under the False Claims Act (“FCA”), however, the court may 

only consider information from the enumerated sources listed in the FCA. 31 U.S.C. 

§3730(e)(4)(A). As discussed in Relator’s Opposition to Defendants’ Motion to 

Dismiss, the FCA was amended in 2010. The 2010 amendments narrowed the class 

of disclosures that trigger the public disclosure bar and radically changed the 

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“hurdle” for relators. United States ex rel. Saldivar v. Fresenius Med. Care 

Holdings, Inc., 841 F.3d 927, 932 n.1 (11th Cir. 2016); U.S. ex rel. Moore & Co., 

P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 298 (3d Cir. 2016). 

The amended FCA limits consideration of what allegations may constitute 

public disclosure to only those made in specific enumerated sources. Allegations 

are considered publicly disclosed only if made “in a Federal criminal, civil, or 

administrative hearing in which the Government or its agent is a party; in a 

congressional, Government Accountability Office, or other Federal report, hearing, 

audit or investigation; or from the news media.” 31 U.S.C.A. §3730(e)(4)(A). Thus, 

when analyzing whether the public disclosure bar applies, consideration of judicially 

noticed facts or documents from sources outside the enumerated categories of 

sources set out in the FCA is improper. 

In their Motion to Dismiss, Defendants stray from this statutory mandate and 

rely on information outside the statutorily enumerated sources to try to establish 

public disclosure. In particular, Odom’s reliance on “public records pursuant to 

Florida public records laws” in considering public disclosure under the FCA is 

improper. The 2010 amendments restricted public disclosure to allegations from 

“federal reports” not state public records requests. Thus, it is improper to consider 

state public records when analyzing the public disclosure bar under the FCA. 

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Odom also requests judicial notice of two (2) emails, Exhibits E and F, 

between the FAA and Okaloosa County. To the extent Odom seeks judicial notice 

of these emails to argue public disclosure, “the public disclosure bar applies only 

where there has been a disclosure outside of the government.” United States ex rel. 

Ortiz v. Mount Sinai Hosp., 256 F. Supp. 3d 443, 454 (S.D.N.Y. 2017); United States 

ex rel. Chiba v. Guntersville Breathables, Inc., 421 F. Supp. 3d 1241, 1260 (N.D. 

Ala. 2019). Moreover, as noted in its objection above, Exhibits E and F appear to 

be unauthenticated public records. 

Relator does not object to judicial notice of Exhibits A, C, and J. 

WHEREFORE, for the foregoing reasons, Plaintiff, Robert Smith respectfully 

requests that this Court deny Odom’s Motion for Disqualification. 

Respectfully submitted this 28th day of November 2022. 

/s/ Elizabeth C. Billhimer 

ELIZABETH C. BILLHIMER 

Florida Bar No. 0121986 

CLARK PARTINGTON

4100 Legendary Drive, Ste. 200. 

Destin, Florida 32541 

(850) 650-3304 telephone 

(850) 650-3305 facsimile 

ebillhimer@clarkpartington.com 

fkendall@clarkpartington.com 

bgilman@clarkpartington.com 

Attorney for Robert V. Smith 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing has been 

served by electronic mail via the Court’s transmission of the Notice of Electronic 

Filing to the following, this 28th day of November 2022: 

A. BENJAMIN GORDON, III 

Anchors Gordon, P.A. 

2113 Lewis Turner Blvd., Suite 100 

Fort Walton Beach, FL 32547 

bgordon@anchorsgordon.com 

aizzo@anchorsgordon.com 

cyndi@anchorsgordon.com 

mary@anchorsgordon.com 

SARAH WILBANKS 

NATHANIEL H. HUNT 

PETER J. KIRSCH 

Kaplan Kirsch & Rockwell LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

swilbanks@kaplankirsch.com 

nhunt@kaplankirsch.com 

pkirsch@kaplankirsch.com 

COUNSEL FOR DEFENDANT 

JAY A. ODOM 

GREGORY T. STEWART 

LYNN M. HOSHIHARA 

KERRY A. PARSONS 

Nabors, Giblin & Nickerson, P.A. 

1500 Mahan Drive, Suite 200 

Tallahassee, Florida 32308 

(850) 224-4070 

(850) 224-4073 Facsimile 

gstewart@ngnlaw.com 

lhoshihara@ngnlaw.com 

kparsons@ngnlaw.com 

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legal-admin@ngnlaw.com 

COUNSEL FOR DEFENDANT 

OKALOOSA COUNTY, BOARD OF COUNTY COMMISSIONERS 

DAVID M. SOBOTKIN 

Trial Attorney 

U.S. Department of Justice 

Civil Division, Fraud Section 

Post Office Box 261 

Ben Franklin Station 

Washington, D.C. 20044 

(202) 353-1291 

David.m.sobotkin@usdoj.gov 

ATTORNEY FOR PLAINTIFF 

UNITED STATES OF AMERICA 

And by regular U.S. mail to the State of Florida

ASHLEY MOODY, ATTORNEY GENERAL 

Office of the Attorney General 

State of Florida 

PL-01 The Capitol 

Tallahassee, FL 32399-1050 

And 

JIMMY PATRONIS, Chief Financial Officer 

Florida Department of Financial Services 

200 East Gaines Street 

Tallahassee, FL 32399 

/s/ Elizabeth C. Billhimer 

ELIZABETH C. BILLHIMER 

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