IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60414

Summary Calendar

United States of America, ex rel, DONALD C. HOLMES, 

 Plaintiff - Appellant

v.

NORTHROP GRUMMAN CORPORATION, A Delaware Corporation; 

HUNTINGTON INGALLS, INCORPORATED, formerly known as Northrop 

Grumman Shipbuilding, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:13-CV-85

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Donald Holmes brought this qui tam action as relator 

for the Government under the False Claims Act. He appeals the district court’s 

order disqualifying him from serving as a relator in the suit and dismissing the 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 23, 2016

Lyle W. Cayce

Clerk

 Case: 15-60414 Document: 00513434876 Page: 1 Date Filed: 03/23/2016
No. 15-60414

2

case without prejudice to the Government. Because Holmes fails to raise any 

arguments warranting reversal, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

This dispute involves two underlying proceedings and a tangled array of 

related actions. And, like so many cases that have appeared in our court 

recently, Hurricane Katrina was the catalyst for the chain of events leading to

this appeal. 

Northrop Grumman Corporation (“NGC”)1 is a large government 

contractor that, amongst other things, operates shipyards in Mississippi and 

Louisiana. Northrop Grumman Risk Management, Inc., insured its parent 

company, NGC, for certain losses related to those shipyards. A separate 

company, Munich Re, then provided reinsurance for NGC’s covered losses. In 

late 2005, NGC presented a claim under its policy with Munich Re for alleged 

damages to several of its shipyards as a result of Hurricane Katrina. During 

the adjustment process, Munich Re and NGC entered into a confidentiality 

agreement that prohibited Munich Re and its agents from disclosing 

documents and information that they received from NGC. Munich Re 

ultimately initiated arbitration proceedings in London, England, to resolve 

coverage disputes under the Munich Re/NGC reinsurance policy (the “London 

Arbitration”). Holmes and another lawyer, Gerald Fisher, represented Munich 

Re in the London Arbitration.

While the London Arbitration was pending, Munich Re submitted a 

request with the United States Navy for documents relating to NGC. The Navy 

agreed to release the requested documents if an enforceable protective order 

was put in place. As a result, on April 6, 2010, Munich Re—represented by 

 

1 For simplicity purposes, we will refer to NGC and its subsidiaries as “NGC” with the 

exception of one NGC’s subsidiaries, Northrop Grunman Risk Management, Inc.

 Case: 15-60414 Document: 00513434876 Page: 2 Date Filed: 03/23/2016
No. 15-60414

3

Holmes and Fisher—filed a complaint in the U.S. District Court for the District 

of Columbia against NGC and several of its subsidiaries seeking a protective 

order (the “Protective Order Litigation”). In the complaint, Holmes and Fisher 

stated that they sought the relevant documents “in aid of private foreign 

arbitration only” and that they were “in no way . . . attempt[ing] to usurp the 

power of the arbitration tribunal” for other purposes. The complaint included 

a proposed protective order, which prohibited the use of the requested 

documents for any purpose outside of the London Arbitration.

On June 2, 2010, while the Protective Order Litigation was still pending, 

Holmes and Fisher filed a qui tam lawsuit against NGC and others under the 

False Claims Act (“FCA”). They alleged that NGC had defrauded the Navy by 

using government funds allocated for expenses related to Hurricane Katrina 

to cover cost overruns that had occurred before the storm. Amongst other 

things, the complaint alleged that a review of the documents that they 

anticipated receiving from the Navy would help prove their claim. This 

complaint was filed under seal pursuant to the FCA, and the suit was later 

transferred from the District of Columbia to the Southern District of 

Mississippi.

On June 18, 2010, the parties in the Protective Order Litigation 

stipulated to a protective order, and on June 24, 2010, the district court entered

the proposed protective order (the “Protective Order” or “Order”). The 

Protective Order stated that any produced documents designated “Court 

Protected Material” would “be used or disclosed solely in the [London]

Arbitration” and would “not be used in any other proceeding or for any other 

purpose without further order of this Court.” The Protective Order further

required the parties to return or destroy all protected materials at the 

conclusion of the London Arbitration. Despite the express terms of the 

Protective Order, Holmes submitted documents he received from the Navy to 

 Case: 15-60414 Document: 00513434876 Page: 3 Date Filed: 03/23/2016
No. 15-60414

4

the Department of Justice’s Civil Fraud Division and to the district court

presiding over the qui tam action.

On November 11, 2011, NGC and Munich Re settled the London 

Arbitration.

On December 8, 2011, the United States officially declined to intervene 

in the qui tam suit. In previous filings, the Government explained that it had 

investigated the claims, and that, amongst other things, its decision not to 

participate “stem[med] from serious ethical and professional responsibility 

concerns arising from the particular circumstances of [the] action.” On August 

18, 2012, Fisher also withdrew from the case when Holmes filed the operative 

First Amended Complaint.

In October 2013, Appellees filed a motion to disqualify Holmes from 

representing the United States as a qui tam relator, citing his unethical 

conduct in pursuing the claim. On June 3, 2015, the district court granted the 

motion and issued an order (1) disqualifying Holmes as a relator and (2) 

dismissing the case with prejudice as to Holmes, but without prejudice as to 

any rights of the United States. Holmes timely appealed.

II. STANDARD OF REVIEW

We review rulings on motions to disqualify for abuse of discretion. 

F.D.I.C. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311 (5th Cir. 1995). Under this 

standard, we review fact-findings for clear error and review de novo the district 

court’s application of the relevant rules of attorney conduct. Id. This same 

abuse of discretion standard applies in our review of a district court’s dismissal 

of a complaint as a result of ethical violations. See Salmeron v. Enter. Recovery 

Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009); see also United States v. Quest 

Diagnostics Inc., 734 F.3d 154, 165–66 (2d Cir. 2013).

 Case: 15-60414 Document: 00513434876 Page: 4 Date Filed: 03/23/2016
No. 15-60414

5

III. DISCUSSION

In a thorough and detailed opinion, the district court outlined Holmes’ 

numerous ethical violations committed in pursuit of this qui tam action. Citing

the District of Columbia Rules of Professional Conduct, the Mississippi Rules 

of Professional Conduct, and the American Bar Association’s Model Rules,2 the 

district court persuasively explained that Holmes violated no less than four 

ethical duties. 

The court first explained that Holmes violated his duty of loyalty by 

taking a position in the qui tam suit that was contrary to the interests of his 

client, Munich Re, in the London Arbitration. See ABA Model Rule 1.7(a) (“[A]

lawyer shall not represent a client if the representation involves a concurrent 

conflict of interest.”). The analysis is straightforward: in the London 

Arbitration, Munich Re argued that it did not owe NGC compensation for 

certain losses related to Hurricane Katrina in part because the Government 

had previously paid NGC compensation for those losses; Holmes then argued 

in the qui tam action that the Government should not have paid all of NGC’s 

claimed losses from Hurricane Katrina.3 These two positions are clearly in 

direct conflict.

 

2 The district court explained that these rules apply because: (1) much of Holmes’ 

conduct occurred while the case was pending in the U.S. District Court for the District of 

Columbia, (2) the Mississippi Rules of Professional Conduct apply to litigants practicing in 

federal court in Mississippi, and (3) the Fifth Circuit recognizes the ABA Model Rules as the 

national standard for professional conduct. See U.S. ex rel. Holmes v. Northrop Grumman 

Corp., No. 1:13CV85-HSO-RHW, 2015 WL 3504525, at *4 (S.D. Miss. June 3, 2015). There 

is no material difference for purposes of this case between the three sets of rules, and 

therefore our discussion centers on the ABA Model Rules, as they are the “national standards 

utilized by this circuit in ruling on disqualification motions.” In re Am. Airlines, Inc., 972 

F.2d 605, 610 (5th Cir. 1992). 3 Holmes argues that the qui tam action was a litigation tactic to force settlement in 

the London Arbitration and that he received informed consent from Munich Re to pursue his 

claim. Oddly, in support of the proposition that he disclosed conflicts issues with his client, 

Holmes cites to a filing by the Government in which the Government expressed serious

“ethical and professional responsibility concerns” with Holmes’ conduct, including “a 

 Case: 15-60414 Document: 00513434876 Page: 5 Date Filed: 03/23/2016
No. 15-60414

6

Perhaps most troubling of the violations was Holmes’ blatant disregard 

for the Protective Order and his related violation of his duty of candor to the 

court. There is no dispute that Holmes violated the express terms of the 

Protective Order by relaying the documents he received in the Protective Order 

Litigation to the Department of Justice and the district court in the qui tam

action; indeed, Holmes has conceded the point.4 He also concedes on appeal

that he was obligated to follow the Protective Order in pursuing his qui tam

claim.5 

The district court also concluded that Holmes violated his duty of candor 

during the course of the Protective Order Litigation. Holmes and Fisher told 

the court in the Protective Order Litigation on April 6, 2010, that Munich Re

was seeking documents for use solely in the London Arbitration. On June 2, 

2010, Holmes filed the qui tam suit, and told the court there that he expected

that the documents he received from the Navy would prove NGC’s alleged 

fraud. Holmes stipulated to the Protective Order on June 18, 2010, and the 

order was entered on June 24. He then promptly disclosed the documents he 

 

potential conflict between [Holmes’] claims in this qui tam action and those of [his] insurance 

company client[, Munich Re,] in its arbitration with NGC.” The Government further stated 

that its communications with Munich Re did not assuage these concerns. The other evidence 

that Holmes cites for this claim is limited, and indicates that he represented to Munich Re 

that he was legally required to bring his qui tam suit (which he was not) and that there is no 

attorney-client privilege issue (which the district court did not raise). 4 In fact, Holmes filed a motion with the U.S. District Court for the District of 

Columbia to correct his violation of the Protective Order. In particular, he asked the court 

for a modification of the Order to allow him to use the protected documents in the qui tam

suit and to sanction him in the amount of $1,000 for his violation. The district court denied 

the motion, finding “no reason—let alone good cause—to change the terms of the original 

protective order.” Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft in Munchen 

v. Northrop Grumman Risk Mgmt. Inc., No. 10-551 (JEB), 2015 WL 8483241, at *6 (D.D.C. 

Dec. 9, 2015). 5 The district court similarly found that Holmes’ disclosures included Munich Re’s 

confidential information—obtained during the course of his representation—in violation of

his duty of confidentiality. See ABA Model Rule 1.6(a) (“A lawyer shall not reveal information 

relating to the representation of a client unless the client gives informed consent . . . .”).

 Case: 15-60414 Document: 00513434876 Page: 6 Date Filed: 03/23/2016
No. 15-60414

7

received pursuant to the Protective Order to third parties in direct 

contravention of the terms of the Order and his representations to the court in 

the Protective Order Litigation. Later, in the operative First Amended 

Complaint, Holmes stated that he had “gained access to documents and 

information showing that the U.S. Government has been defrauded,” including

“documentation submitted by Northrop Grumman to the Navy.” Based on this

timeline, the district court did not clearly err in finding that Holmes violated 

his duty of candor in his representations to the court in the Protective Order 

Litigation.6 See ABA Model Rule 3.3(a) (“A lawyer shall not knowingly . . .

make a false statement of fact or law to a tribunal or fail to correct a false 

statement of material fact or law previously made to the tribunal by the 

lawyer.”); see also ABA Model Rules 4.1(a), 8.4(c). This timeline also supports 

the court’s finding that Holmes knowingly violated the Protective Order.

 The district court concluded that (1) “based on the totality of the ethical 

violations committed by Holmes surrounding this qui tam case, Holmes should 

be disqualified from serving as relator in this case,” and (2) “merely 

disqualifying Holmes from serving as relator without dismissing the case 

would greatly prejudice Northrop Grumman because the case would be tried 

on a record developed primarily through the fruits of Holmes’ unethical 

conduct.” Citing Quest Diagnostics, 734 F.3d at 167, the district court noted 

that its dismissal of the complaint was further justified by the fact that neither 

the United States, as the real party in interest, nor any other relator was 

foreclosed from bringing the claims.

 

6 Holmes claims that he was “extremely candid” with the court “about documents, 

where they came from, and the fact that he needed further guidance from the District Court 

as to how to deal with them.” In support he cites filings made with the district court in the 

qui tam suit. This argument is, at best, misguided: he violated his duty of candor to the 

court in the Protective Order Litigation in an apparent effort to gain access to the relevant 

documents—his disclosures in the qui tam suit are therefore irrelevant.

 Case: 15-60414 Document: 00513434876 Page: 7 Date Filed: 03/23/2016
No. 15-60414

8

District courts are afforded discretion in penalizing ethical violations, 

including disqualifying a relator and dismissing his suit in a qui tam action,

see id. at 165–69 (affirming the disqualification of relator and the dismissal of 

the complaint in qui tam suit for ethical violations); Salmeron, 579 F.3d at 798 

(similar), and Holmes has failed to raise any competent argument as to how 

the district court abused its discretion here. In his briefing before the district 

court, Holmes challenged his disqualification largely based on his assertion

that ethics rules and confidentiality duties are inapplicable in FCA cases. He 

now acknowledges on appeal that he is obligated to abide by his ethical 

obligations as a lawyer—even in FCA cases—and that he was and is bound by 

the terms of the Protective Order.7 

In addition to conceding these points of law, his brief on appeal fails to 

muster a cognizable argument to bolster his position, as it lacks any 

meaningful citation to legal authority,8 and contains only sparse reference to

the record on appeal.9 This failure is inexcusable given that Holmes is an 

experienced attorney and has already been warned by the district court in this 

 

7 See Quest Diagnostics Inc., 734 F.3d at 163 (citing Bates v. Dow Agrosciences LLC, 

544 U.S. 431, 449 (2005), and holding that nothing in the FCA evinces a clear legislative 

intent to preempt state statutes and rules that regulate attorneys’ disclosure of client 

confidences); Holden v. Simpson Paper Co., 48 F. App’x 917, 2002 WL 31115137, at *2 (5th 

Cir. Sept. 18, 2002) (“Deliberately disobeying court orders demonstrates sufficient bad faith 

to justify a district court’s sanction under its inherent powers.”).

8 In his brief, Holmes’ legal citations are limited to the following: one case (in the 

standard of review section); Rule 12(b)(6) (in the standard of review section); the FCA (twice,

in the jurisdiction section); and 18 U.S.C. § 4 (in the facts section). He also includes crossreferences to portions of motions that he filed in district court; however, we have previously 

held that “an appellant may not incorporate by reference arguments made in the district 

court.” Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 431 n.6 (5th Cir. 

2013).

9 Holmes’ only meaningful citations to the record are discussed in footnotes 3 & 6, 

supra.

 Case: 15-60414 Document: 00513434876 Page: 8 Date Filed: 03/23/2016
No. 15-60414

9

litigation about his failure to properly brief matters.10 We therefore decline 

the invitation to dig through Holmes’ bald assertions and marshal an 

argument on his behalf; as we have previously stated, “[j]udges are not like 

pigs, hunting for truffles buried in briefs.” de la O v. Hous. Auth. of City of El 

Paso, 417 F.3d 495, 501 (5th Cir. 2005) (quoting United States v. Dunkel, 927 

F.2d 955, 956 (7th Cir. 1991)).11

Holmes’ remaining argument on appeal is that the district court did not 

afford him an evidentiary hearing on NGC’s disqualification motion; however, 

Holmes did not raise any evidentiary issues before the district court and there 

is no indication that he ever requested an evidentiary hearing on the 

disqualification motion. And, sure enough, he fails to cite any legal authority 

on appeal supporting the position that he is entitled to a hearing. We therefore 

find no reason to conclude that the district court abused its discretion in not 

holding an evidentiary hearing on NGC’s motion to disqualify. See In re 

Eckstein Marine Serv. L.L.C., 672 F.3d 310, 319 (5th Cir. 2012) (stating that a 

 

10 Holmes is an experienced lawyer, having spent over forty-seven years as a 

practicing attorney, including as a partner in one of this country’s largest law firms. The 

district court therefore warned Holmes that, although he is appearing pro se, he “is not 

automatically subject to the very liberal standards afforded to a non-attorney pro se plaintiff 

because an attorney is presumed to have a knowledge of the legal system and need less 

protections from the court.” See Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 

2007); Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (stating that “pro se

attorneys . . . typically cannot claim the special consideration which the courts customarily 

grant to pro se parties.” (internal quotation marks omitted)). Later, the district court issued 

an Order on Miscellaneous Relief, admonishing Holmes and stating: “in what appears to be 

a recurring practice of the relators in this case, they cite no case law, statute, or other legal 

authority indicating this Court’s power to grant such relief, nor does the Court discern any 

legal basis for doing so.” The court then specifically ordered that “the relators shall refrain 

from filing any further motions in this case without citations to supporting legal authority.” 11 See also United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (“A party 

that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived 

it. . . . [A]mong other requirements to properly raise an argument, a party must ordinarily 

identify the relevant legal standards and any relevant Fifth Circuit cases.” (citation and 

internal quotation marks omitted)).

 Case: 15-60414 Document: 00513434876 Page: 9 Date Filed: 03/23/2016
No. 15-60414

10

district court’s denial of an evidentiary hearing is reviewed for abuse of 

discretion); see also United States v. Skilling, 554 F.3d 529, 568 n.63 (5th Cir. 

2009), aff’d in part, vacated in part on other grounds, 561 U.S. 358 (2010)

(holding that appellant waived his argument that he was entitled to an 

evidentiary hearing because the appellant failed to brief the following issues: 

“When is a district court obligated to hold an evidentiary hearing? What is the 

standard of review? Are there any relevant Fifth Circuit cases?”).

IV. CONCLUSION

Given Holmes’ failure to challenge the district court’s careful and wellreasoned opinion in any meaningful way, we AFFIRM.

 Case: 15-60414 Document: 00513434876 Page: 10 Date Filed: 03/23/2016