### 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 G overnment 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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: 03/23/2016No. 15

- 60414

2 case without prejudice to the G overnment . Because Holmes fails to raise any arguments warranting reversal, w e AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
This dispute involves two underlying proceedings and a tangled array of
related actions

. And , l ike 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 Grum man Corporation (“NGC”) 1 is a large government contractor that, amongst other things, operates shipyards in Mississippi and Louisiana

. Northrop Grum man Risk Management , Inc

. , insured its parent company, NGC, for certain los s es related to those shipyards . A separate company, Mun ich 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 the y received from NGC

. Munich Re ultimately initiated arbitration proceedings in London , England , to resolve coverage di sputes 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 Unite d 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

— r epresented 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: 03/23/2016No. 15

- 60414

3 Holmes and Fisher

— filed a complaint in the U.S

. D istrict 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 document s “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 requeste d
document s for any purpose outside of the London Arbitration. On June 2, 2010, while the P rotec tive O rder L itigation was still pending, Holmes and Fisher filed a qui tam lawsuit against NGC and others under the False Claims Act (“FCA”). They alleged th at 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
antic ipated receiving from the Navy would help prove their claim. This compla int 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 i n 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” )

. Th e Protective O rder stated that any produced documents designated “Cou rt Protected M aterial” would “be us ed or disclosed solely in the [London] Arbitration” and would “not be used in any other proceeding or for any other purpose with out further order of this Court

. ” The Protective Order further required the parties to retur n or destroy all protected materials at the conclusion of the London A rbitration. Despite the express terms of the Protective O rder, Holmes submitted documents he received from the Navy to Case: 15-60414 Document: 00513434876 Page: 3 Date Filed: 03/23/2016No. 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, t he G overnment expl ained 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, 2 012, Fisher also withdrew from the case when Ho l mes 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 pursui ng 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 ti mely 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 revie w fact

- findings for clear error and review de novo the district court’s application of the relevant rules of attorney conduct. Id. T his 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. Recove ry 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: 03/23/2016No. 15

- 60414

5 III. DISCUSSION
In a thorough and detailed opinion, the district court outlined Holmes’
numerous ethical violations committe d in pursuit of this qui tam action. Citing
the Di strict of Columbia Rules of Professional Conduct , the Mississippi Rules of Professional Conduct, and t he American Ba r 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 loy alty 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 losse s related to Hurricane Katrina in part because the G overnment had previously paid NGC compensation for those l osses; Holmes then argued
in the qui tam action that the G overnment should not have paid all of NGC’s claimed losses from Hurricane Katrina. 3 The se two positions are clearly in direct conflict.

2 The district court explained that these rules apply because : (1) m uch 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 recogni zes 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 thr ee sets of rules, and therefore our discussion centers on the ABA Model Rules , as the y 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 argue s 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 clie nt, Holmes cites t o a filing by the Government in which the G o vernment expressed serious “ethical and professional responsibility concerns” with Holmes’ conduct, including “a Case: 15-60414 Document: 00513434876 Page: 5 Date Filed: 03/23/2016No. 15

- 60414

6 Perhaps most troubling of the violations wa s Hol mes’ blatant disregard for the Protective O rder and his related violation of his duty of candor to the court. There is no dispute that Holmes vio lated the exp ress terms of the
P rotecti ve O rder by relaying the documents he received in the Protective Order Litigation to the Department of Justic e 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
T he 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 Liti gation on April 6, 2010, that Munich Re was seeking documents for use solely in the London Arbitration. O n June 2, 2010, Holmes filed the qui tam suit, and told the court there that he expected that the documents he received fro m the Navy would prove NGC’s alleged fraud. Holmes stipulated to the Protective Order on June 18, 2010, and the

or der was entered on June 24

. He t hen promptly disclosed the documents he

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

com pany client[, Munich R e,] in its arbitration with NGC.” The G overnmen t further stated that its communications with Munich Re did not assuage these concerns

. T he 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 us e 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 distr ict 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 informatio n relating to the representation of a client unless the client gives informed consent

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

- 60414

7 received pursuant to the Protective Order to third parties in direct
cont ravention 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. Gover nment 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 Ho l mes 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 sha ll 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 previ ously made to t he tribunal by the lawyer .” ) ; see also ABA Model Rule s 4.1(a) , 8.4(c). This timeline also supports
the court ’s finding that Holmes knowing ly violated the Protective Order

. T he district court concluded that (1) “based on the totality of th e 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 rela tor 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 justifie d 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 ir relevant. Case: 15-60414 Document: 00513434876 Page: 7 Date Filed: 03/23/2016No. 15

- 60414

8 District courts are afforded discretion in penalizing ethical violations, including disqualifying a relator and dism issing his suit in a qui tam action,

s ee 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 O rder. 7 In addition to conceding these points of law , his bri ef on a ppeal fails to muster a cognizable a rgument to bolster his position, as it lacks any meaningfu l 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 atto rney and has already been warned by the district c ourt 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’ di sclosure 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 inher ent 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 fa cts section). He also includes cross
reference s to portion s of motion s 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 citation s to the record are discussed in footnote s 3 & 6 , supra

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

- 60414

9 litigation about his failure to properly brief matters

. 10 W e therefore decline the invitation to dig through Holmes’ bald assertions and marsha l 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 h im 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 evidentiar y 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 H olmes is an experienced lawyer, having spent over forty

- seven years as a practicing at torney , including as a partner in one of this country’s largest law firms. T he 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 p laintiff 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, admonish ing 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 th e Court discern any legal basis for do ing 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 pa rty 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 Circ uit cases.” ( citation and internal quotation marks omitted) )

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

- 60414

10 district court’s denial of an evidentiary hearing is re viewed 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 a nd well

reasoned opinion in any meaningful way, we AFFIRM. Case: 15-60414 Document: 00513434876 Page: 10 Date Filed: 03/23/2016