Filed: January 8, 2014 

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1369

(1:02-cv-01168-AJT-TRJ)

UNITED STATES ex rel. KURT BUNK; UNITED STATES ex rel. RAY 

AMMONS,

Plaintiffs – Appellants,

and

UNITED STATES OF AMERICA,

Intervenor/Plaintiff – Intervenor,

and

UNITED STATES ex rel. DANIEL HEUSER,

Plaintiff,

v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC 

SMET,

Defendants – Appellees,

and

BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE KG; THE 

PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS CHRIST 

SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; AMERICAN 

MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS 

INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN 

VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR 

LAND FORWARDERS SUDDATH; COVAN INTERNATIONAL; JET 

FORWARDING INCORPORATED; ARPIN INTERNATIONAL; BIRKART 

GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA 

SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA SCHAFER 

INTERNATIONAL SPEDITION GMBH; VIKTORIA-SKS KURT SCHAFER 

INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH & CO. 

INTERNATIONALE SPEDITION KG; GILLEN & GARCON GMBH & CO. KG; 

M.T.S. HOLDING & VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; 

ANDREAS CHRIST GMBH; MICHAEL VILLINGER; ERWIN WEYAND;
2

NICODEMUS GOSSELIN; DIETER SCHMEKEL; HORST BAUR; KURT 

SCHAFER; MARTINA SCHAFER; JOHN DOE DEFENDANTS; BIRKART 

VERMOGENSVERWALTUNG GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND 

GMBH; LOGWIN HOLDING DEUTSCHLAND GMBH; JURGEN GRAF; MISSY 

DONNELLY; GEORGE PASHA; AMERICAN MOPAC INTERNATIONAL, 

INCORPORATED; AMERICAN SHIPPING INCORPORATED; CARTWRIGHT 

INTERNATIONAL VAN LINES INCORPORATED; JIM HAHN; 

INTERNATIONAL SHIPPERS ASSOCIATION INCORPORATED; GOSSELIN 

WORLD WIDE MOVING GMBH;VIKTORIA INTERNATIONAL 

SPEDITION;GOVERNMENT LOGISTICS N.V.; GATEWAYS INTERNATIONAL 

INCORPORATED,

Defendants.

----------------------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; 

PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

Amici Supporting Appellees,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

Amicus Supporting Appellants. 

No. 12-1417

(1:02-cv-01168-AJT-TRJ)

UNITED STATES ex rel. KURT BUNK; UNITED STATES ex rel. RAY 

AMMONS,

Plaintiffs – Appellees,

and

UNITED STATES OF AMERICA,

Intervenor/Plaintiff – Appellee,

and

UNITED STATES ex rel. DANIEL HEUSER,

Plaintiff,

v.
3

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC 

SMET,

Defendants – Appellants,

and

VIKTORIA INTERNATIONAL SPEDITION; GOVERNMENT LOGISTICS 

N.V.; BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE 

KG; THE PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS 

CHRIST SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; 

AMERICAN MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS 

INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN 

VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR 

LAND FORWARDERS SUDDATH; COVAN INTERNATIONAL; JET 

FORWARDING INCORPORATED; ARPIN INTERNATIONAL; BIRKART 

GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA 

SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA-SKS KURT 

SCHAFER INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH 

& CO. INTERNATIONALE SPEDITION KG; M.T.S. HOLDING & 

VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; ANDREAS CHRIST GMBH; 

MICHAEL VILLINGER; ERWIN WEYAND; NICODEMUS GOSSELIN; DIETER 

SCHMEKEL; JURGEN GRAF; HORST BAUR; KURT SCHAFER; MARTINA 

SCHAFER; JOHN DOE DEFENDANTS; BIRKART VERMOGENSVERWALTUNG 

GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND GMBH; LOGWIN HOLDING 

DEUTSCHLAND GMBH; MISSY DONNELLY; GEORGE PASHA; AMERICAN 

MOPAC INTERNATIONAL, INCORPORATED; AMERICAN SHIPPING 

INCORPORATED; CARTWRIGHT INTERNATIONAL VAN LINES 

INCORPORATED; JIM HAHN; INTERNATIONAL SHIPPERS ASSOCIATION 

INCORPORATED; GATEWAYS INTERNATIONAL INCORPORATED; GOSSELIN 

WORLD WIDE MOVING GMBH,

Defendants.

---------------------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; 

PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

Amici Supporting Appellants,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

Amicus Supporting Appellees.
4

No. 12-1494

(1:02-cv-01168-AJT-TRJ)

UNITED STATES OF AMERICA,

Intervenor/Plaintiff – Appellant,

and

UNITED STATES ex rel. DANIEL HEUSER; UNITED STATES ex rel. 

KURT BUNK; UNITED STATES ex rel. RAY AMMONS,

Plaintiffs,

v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC 

SMET,

Defendants – Appellees,

and

BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE KG; THE 

PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS CHRIST 

SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; AMERICAN 

MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS 

INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN 

VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR 

LAND FORWARDERS SUDDATH; COVAN INTERNATIONAL; JET 

FORWARDING INCORPORATED; ARPIN INTERNATIONAL; BIRKART 

GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA 

SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA-SKS KURT 

SCHAFER INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH 

& CO. INTERNATIONALE SPEDITION KG; M.T.S. HOLDING & 

VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; ANDREAS CHRIST GMBH; 

MICHAEL VILLINGER; ERWIN WEYAND; NICODEMUS GOSSELIN; DIETER 

SCHMEKEL; JURGEN GRAF; HORST BAUR; KURT SCHAFER; MARTINA 

SCHAFER; JOHN DOE DEFENDANTS; BIRKART VERMOGENSVERWALTUNG 

GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND GMBH; LOGWIN HOLDING 

DEUTSCHLAND GMBH; MISSY DONNELLY; GEORGE PASHA; AMERICAN 

MOPAC INTERNATIONAL, INCORPORATED; AMERICAN SHIPPING 

INCORPORATED; CARTWRIGHT INTERNATIONAL VAN LINES 

INCORPORATED; JIM HAHN; INTERNATIONAL SHIPPERS ASSOCIATION 

INCORPORATED; GATEWAYS INTERNATIONAL INCORPORATED; GOSSELIN 
5

WORLD WIDE MOVING GMBH; GOVERNMENT LOGISTICS N.V.; VIKTORIA 

INTERNATIONAL SPEDITION,

Defendants.

-------------------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; 

PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

Amici Supporting Appellees,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

Amicus Supporting Appellant. 

O R D E R

The Court amends its opinion filed December 19, 2013, 

as follows:

On page 6, attorney information section, line 3, the 

name “Michael L. Woolley” is corrected to read “Michelle L. 

Woolley.”

For the Court – By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1369

UNITED STATES ex rel. KURT BUNK; UNITED STATES ex rel. RAY 

AMMONS,

Plaintiffs – Appellants,

and

UNITED STATES OF AMERICA,

Intervenor/Plaintiff – Intervenor,

and

UNITED STATES ex rel. DANIEL HEUSER,

Plaintiff,

v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC 

SMET,

Defendants – Appellees,

and

BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE KG; THE 

PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS CHRIST 

SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; AMERICAN 

MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS 

INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN 

VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR 

LAND FORWARDERS SUDDATH; COVAN INTERNATIONAL; JET 

FORWARDING INCORPORATED; ARPIN INTERNATIONAL; BIRKART 

GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA 

SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA SCHAFER 

INTERNATIONAL SPEDITION GMBH; VIKTORIA-SKS KURT SCHAFER 

INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH & CO. 
2

INTERNATIONALE SPEDITION KG; GILLEN & GARCON GMBH & CO. KG; 

M.T.S. HOLDING & VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; 

ANDREAS CHRIST GMBH; MICHAEL VILLINGER; ERWIN WEYAND; 

NICODEMUS GOSSELIN; DIETER SCHMEKEL; HORST BAUR; KURT 

SCHAFER; MARTINA SCHAFER; JOHN DOE DEFENDANTS; BIRKART 

VERMOGENSVERWALTUNG GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND 

GMBH; LOGWIN HOLDING DEUTSCHLAND GMBH; JURGEN GRAF; MISSY 

DONNELLY; GEORGE PASHA; AMERICAN MOPAC INTERNATIONAL, 

INCORPORATED; AMERICAN SHIPPING INCORPORATED; CARTWRIGHT 

INTERNATIONAL VAN LINES INCORPORATED; JIM HAHN; 

INTERNATIONAL SHIPPERS ASSOCIATION INCORPORATED; GOSSELIN 

WORLD WIDE MOVING GMBH;VIKTORIA INTERNATIONAL 

SPEDITION;GOVERNMENT LOGISTICS N.V.; GATEWAYS INTERNATIONAL 

INCORPORATED,

Defendants.

----------------------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; 

PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

Amici Supporting Appellees,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

Amicus Supporting Appellants. 

No. 12-1417

UNITED STATES ex rel. KURT BUNK; UNITED STATES ex rel. RAY 

AMMONS,

Plaintiffs – Appellees,

and

UNITED STATES OF AMERICA,

Intervenor/Plaintiff – Appellee,

and
3

UNITED STATES ex rel. DANIEL HEUSER,

Plaintiff,

v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC 

SMET,

Defendants – Appellants,

and

VIKTORIA INTERNATIONAL SPEDITION; GOVERNMENT LOGISTICS 

N.V.; BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE 

KG; THE PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS 

CHRIST SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; 

AMERICAN MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS 

INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN 

VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR 

LAND FORWARDERS SUDDATH; COVAN INTERNATIONAL; JET 

FORWARDING INCORPORATED; ARPIN INTERNATIONAL; BIRKART 

GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA 

SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA-SKS KURT 

SCHAFER INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH 

& CO. INTERNATIONALE SPEDITION KG; M.T.S. HOLDING & 

VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; ANDREAS CHRIST GMBH; 

MICHAEL VILLINGER; ERWIN WEYAND; NICODEMUS GOSSELIN; DIETER 

SCHMEKEL; JURGEN GRAF; HORST BAUR; KURT SCHAFER; MARTINA 

SCHAFER; JOHN DOE DEFENDANTS; BIRKART VERMOGENSVERWALTUNG 

GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND GMBH; LOGWIN HOLDING 

DEUTSCHLAND GMBH; MISSY DONNELLY; GEORGE PASHA; AMERICAN 

MOPAC INTERNATIONAL, INCORPORATED; AMERICAN SHIPPING 

INCORPORATED; CARTWRIGHT INTERNATIONAL VAN LINES 

INCORPORATED; JIM HAHN; INTERNATIONAL SHIPPERS ASSOCIATION 

INCORPORATED; GATEWAYS INTERNATIONAL INCORPORATED; GOSSELIN 

WORLD WIDE MOVING GMBH,

Defendants.

---------------------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; 

PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

Amici Supporting Appellants,
4

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

Amicus Supporting Appellees.

No. 12-1494

UNITED STATES OF AMERICA,

Intervenor/Plaintiff – Appellant,

and

UNITED STATES ex rel. DANIEL HEUSER; UNITED STATES ex rel. 

KURT BUNK; UNITED STATES ex rel. RAY AMMONS,

Plaintiffs,

v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC 

SMET,

Defendants – Appellees,

and

BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE KG; THE 

PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS CHRIST 

SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; AMERICAN 

MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS 

INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN 

VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR 

LAND FORWARDERS SUDDATH; COVAN INTERNATIONAL; JET 

FORWARDING INCORPORATED; ARPIN INTERNATIONAL; BIRKART 

GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA 

SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA-SKS KURT 

SCHAFER INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH 

& CO. INTERNATIONALE SPEDITION KG; M.T.S. HOLDING & 

VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; ANDREAS CHRIST GMBH; 

MICHAEL VILLINGER; ERWIN WEYAND; NICODEMUS GOSSELIN; DIETER 

SCHMEKEL; JURGEN GRAF; HORST BAUR; KURT SCHAFER; MARTINA 

SCHAFER; JOHN DOE DEFENDANTS; BIRKART VERMOGENSVERWALTUNG 

GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND GMBH; LOGWIN HOLDING 
5

DEUTSCHLAND GMBH; MISSY DONNELLY; GEORGE PASHA; AMERICAN 

MOPAC INTERNATIONAL, INCORPORATED; AMERICAN SHIPPING 

INCORPORATED; CARTWRIGHT INTERNATIONAL VAN LINES 

INCORPORATED; JIM HAHN; INTERNATIONAL SHIPPERS ASSOCIATION 

INCORPORATED; GATEWAYS INTERNATIONAL INCORPORATED; GOSSELIN 

WORLD WIDE MOVING GMBH; GOVERNMENT LOGISTICS N.V.; VIKTORIA 

INTERNATIONAL SPEDITION,

Defendants.

-------------------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; 

PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

Amici Supporting Appellees,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

Amicus Supporting Appellant. 

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Anthony J. Trenga,

District Judge. (1:02-cv-01168-AJT-TRJ)

Argued: May 14, 2013 Decided: December 19, 2013

Before KING, SHEDD, and THACKER, Circuit Judges.

No. 12-1417 affirmed; No. 12-1369 affirmed in part, reversed in 

part, and remanded with instructions; and No. 12-1494 vacated 

and remanded by published opinion. Judge King wrote the 

opinion, in which Judge Thacker joined. Judge Shedd wrote a 

separate opinion concurring in part and dissenting in part.

ARGUED: Michael T. Anderson, MURPHY ANDERSON PLLC, for United 

States ex rel. Kurt Bunk, United States ex rel. Ray Ammons, and 

United States ex rel. Daniel Heuser. Kerri L. Ruttenberg, JONES 

DAY, Washington, D.C., for Gosselin World Wide Moving, N.V., 

Gosselin Group N.V., and Marc Smet. Jeffrey Clair, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. 
6

ON BRIEF: Richard E. Greenberg, John E. Petite, GREENSFELDER, 

HEMKER & GALE, P.C., St. Louis, Missouri; Ann Lugbill, Mark 

Hanna, Michelle L. Woolley, MURPHY ANDERSON PLLC, Washington, 

D.C., for United States ex rel. Kurt Bunk, United States ex rel. 

Ray Ammons, and United States ex rel. Daniel Heuser. Shay 

Dvoretzky, JONES DAY, Washington, D.C., for Gosselin World Wide 

Moving, N.V., Gosselin Group N.V., and Marc Smet. James M. 

Spears, Melissa B. Kimmel, PHRMA, Washington, D.C.; David W. 

Ogden, Jonathan G. Cedarbaum, Nicole Ries Fox, WILMER CUTLER 

PICKERING HALE AND DORR LLP, Washington, D.C., for 

Pharmaceutical Research and Manufacturers of America. Robin S. 

Conrad, Rachel Brand, NATIONAL CHAMBER LITIGATION CENTER, INC., 

Washington, D.C.; M. Miller Baker, McDERMOTT WILL & EMERY LLP, 

Washington, D.C.; Joshua Buchman, Peter Schutzel, McDERMOTT WILL 

& EMERY LLP, Chicago, Illinois, for Chamber of Commerce of the 

United States of America. Kristin L. Amerling, Cleveland 

Lawrence III, TAXPAYERS AGAINST FRAUD EDUCATION FUND, 

Washington, D.C.; Colette G. Matzzie, Claire M. Sylvia, PHILLIPS 

& COHEN, LLP, Washington, D.C., for Taxpayers Against Fraud 

Education Fund. Neil H. MacBride, United States Attorney, 

Alexandria, Virginia, Stuart F. Delery, Acting Assistant 

Attorney General, Michael S. Raab, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Intervenor.
7

KING, Circuit Judge:

These appeals and cross-appeal are taken from final 

judgments, entered in accordance with Federal Rule of Civil 

Procedure 54(b), in a pair of qui tam actions consolidated for 

litigation in the Eastern District of Virginia. By its Order of 

February 14, 2012, the district court: (1) assessed a single 

civil penalty in the sum of $5,500 in favor of the United 

States, intervening in substitution of relator Ray Ammons, as to 

a single portion of its claim pursuant to the False Claims Act 

(the “FCA”), which it alleged against defendants Gosselin 

Worldwide Moving, N.V., Gosselin Group N.V., and the latter’s 

CEO, Marc Smet (collectively, “Gosselin” or the “company”); (2) 

decreed judgment for Gosselin on the remainder of the FCA claim, 

as well as common law claims asserted by the government in the 

same action; (3) granted judgment as to liability with respect 

to a single FCA claim alleged by relator Kurt Bunk and against 

Gosselin in the second action; but (4) denied Bunk recovery of 

civil penalties on that claim.

The primary issue before us is whether the district court 

erred in determining that, concerning 9,136 false invoices at 

the heart of Bunk’s claim, any award under the FCA must 

necessarily exceed more than $50 million. The court ruled that 

such an assessment would contravene the Excessive Fines Clause 

of the Eighth Amendment, and it thus awarded nothing. We must 
8

also decide whether, as to the larger portion of the 

government’s FCA claim on which Gosselin prevailed, the court 

properly declared the company immune under the Shipping Act. 

Gosselin, for its part, urges on cross-appeal that Bunk’s 

election to seek civil penalties to the exclusion of actual 

damages deprives him of standing to maintain any recovery — even 

one consistent with the Eighth Amendment.

We conclude that Bunk possessed standing to sue for civil 

penalties while bypassing the prospect of a damages award, and 

we thus affirm the district court’s judgment in his favor. To 

the extent, however, that the court denied Bunk recovery of any 

penalties, we reverse and remand for entry of his requested 

award of $24 million, an amount that we deem to be consistent 

with the Constitution. Finally, we are of the opinion that the 

Shipping Act confers no immunity upon Gosselin for any part of 

the government’s FCA claim; we therefore vacate the contrary 

ruling in favor of Gosselin and remand the misadjudicated 

portion of the claim for further proceedings.

I.

A.

1.

An army may march on its stomach, but when a fighting force

is deployed to a foreign front, familiar furnishings also serve 
9

to fuel the foray. The Department of Defense (the “DOD”) seeks 

to provide its armed military forces and civilian personnel with 

the orderly and efficient transport of their goods and effects 

across the Atlantic, point to point within Europe, and back home 

again. The DOD thus instituted the International Through 

Government Bill of Lading program (the “ITGBL program”) to 

govern transoceanic moves, while relying on the Direct 

Procurement Method (the “DPM”) to contract for transport

strictly on the European continent. Both methodologies were 

administered by the DOD’s Military Traffic Management Command 

(the “MTMC”).1

In the ITGBL program, the MTMC solicited domestic vendors —

often referred to as “freight forwarders” — to bid on one or 

more “through rates,” i.e., unitary prices for moving household 

goods along shipping channels established between the several 

states and the particular European countries in which American 

personnel were encamped. Channels were further distinguished 

based on which of the respective termini was the origin of the 

goods. For example, the Virginia-to-Germany channel was bid 

apart from the Germany-to-Virginia channel.

 1 The MTMC is now called the Surface Deployment and 

Distribution Command, or the SDDC.
10

The successful bidders contracted with the MTMC to supply

door-to-door service, typically consisting of discrete segments: 

packing the goods at the origin; land carriage to the ocean 

port; origin port services; ocean transport; destination port 

services; and carriage overland to the destination, where the 

goods were unpacked. Subcontractors, including Gosselin, 

provided services in connection with the European segments, and 

the prices quoted by those subcontractors were taken into 

account by the freight forwarders. The MTMC dealt on an 

individual basis with some of these same subcontractors when it 

availed itself of the DPM to obtain packing, loading, and 

transportation services exclusively within Europe.

On November 14, 2000, Gosselin met in Sonthofen, Germany,

with a number of its industry peers, some that provided services 

in multiple European segments and others that were more locally 

focused. Together, these entities controlled the lion’s share 

of packing and transportation services within Germany. The 

meeting participants agreed to charge a non-negotiable minimum 

price for these local services, which would also be incorporated 

into the fixed “landed rate” quoted to the freight forwarders 

for servicing multiple segments. Apart from its intended effect 

upon the ITGBL program, the Sonthofen meeting and resultant 

agreement arguably served as a catalyst with respect to an 

ongoing DPM scheme. Pursuant to that scheme, Gosselin was 
11

awarded a contract, effective May 1, 2001, after colluding with 

its fellow bidders to artificially inflate the packing and 

loading component of the submitted bids. Thereafter, Gosselin 

subcontracted much of the work, in predetermined allocations, to 

its supposed competitors.

Despite the efforts of Gosselin and its Sonthofen cohorts, 

freight forwarder Covan International, Inc., was able to submit, 

at initial filing for the ITGBL International Summer 2001 

(“IS01”) rate cycle, the low bid on fourteen channels between 

Germany and the United States (the “Covan Channels”). In order 

to increase the likelihood of obtaining business in those 

channels, other freight forwarders such as the Pasha Group, with

which Gosselin had a continuing relationship, would have been 

compelled to match Covan’s prime through rate. Instead, 

Gosselin threatened to withdraw financing from Covan for the 

latter’s purchase of thousands of lift vans required to fulfill 

its contractual obligations with the MTMC. Consequently, Covan 

cancelled its bid, and Gosselin spread the word among the 

freight forwarders that each should, during the second (“metoo”) phase of the bidding, match only the second-lowest bid on 

the Covan Channels.

2.

The foregoing scenario was virtually duplicated one year 

later, during bidding for the IS02 cycle. On that occasion, 
12

Cartwright International Van Lines, Inc., successfully bypassed

the established landed rates to submit the low bid on twelve 

Germany-U.S. channels (the “Cartwright Channels”). Gosselin and 

Pasha, however, convinced Cartwright to withdraw its bid, and, 

after ensuring that local agents would refuse services to anyone 

who failed to cooperate, they secured agreements from Pasha’s 

fellow freight forwarders to echo the second-lowest bid. For 

their actions in connection with the Cartwright Channels, the 

Gosselin and Pasha corporate entities were each convicted of 

federal criminal offenses in the Eastern District of Virginia. 

See United States v. Gosselin World Wide Moving, N.V., 411 F.3d 

502 (4th Cir. 2005).

B.

The above-described acts gave rise to the underlying civil 

actions premised on the FCA, 31 U.S.C. §§ 3729-3733, which, 

during the events in question, provided in pertinent part:

(a) Any person who —

(1) knowingly presents, or causes to be 

presented, to an officer or employee of the United 

States Government . . . a false or fraudulent claim 

for payment or approval;

(2) knowingly makes, uses, or causes to be made 

or used, a false record or statement to get a false 

or fraudulent claims paid or approved by the 

Government; [or]

(3) conspires to defraud the Government by 

getting a false or fraudulent claim allowed or 

paid[,]
13

is liable to the United States Government for a civil 

penalty of not less than $5,000 and not more than $10,000, 

plus 3 times the amount of damages which the Government 

sustains because of the act of that person[.]

Id. § 3729(a).2

 The FCA confers on private persons, such as Bunk 

and Ammons, the authority to “bring a civil action for a 

violation of section 3729 for the person and for the United 

States Government” in the government’s name. Id. § 3730(b)(1).3

Bunk sued in the Eastern District of Virginia on August 2, 

2002, asserting claims arising from the DPM scheme. Ammons’s 

lawsuit, stemming from the machinations relating to the ITGBL 

program, was initiated on September 17, 2002, in the Eastern 

District of Missouri. The two actions were commenced under seal

against Gosselin and a long list of other defendants, all but 

one of which have since been dismissed via settlement and 

otherwise. Advancement of both lawsuits was deferred pending 

the final outcome of the criminal investigation and resultant 

 2 The FCA was revised in 2009 to clarify and flesh out many 

of its provisions. The bases relied on in § 3729(a) to 

establish Gosselin’s potential liability, however, remained 

substantially the same.

3 The heading of § 3730(c) refers to a proceeding initiated 

under the FCA as a “qui tam” action, which has been defined as 

one “under a statute that allows a private person to sue for a 

penalty, part of which the government or some specified public 

institution will receive. They are usually reported as being in 

the name of the government ex rel. ([i.e.,] on the relation of) 

the private citizen.” Bryan A. Garner, A Dictionary of Modern 

Legal Usage 728-29 (2d ed. 1995).
14

proceedings. See § 3730(b)(2), (3) (prescribing that relator’s 

complaint “shall be filed in camera, shall remain under seal for 

at least 60 days, and shall not be served on the defendant until 

the court so orders”). On November 9, 2007, the Ammons matter 

was transferred to the Eastern District of Virginia, where it 

was consolidated with the Bunk proceeding.

Bunk accused Gosselin of participating in an unlawful

conspiracy to defraud the MTMC. His operative Third Amended 

Complaint (the “Bunk Complaint”), filed December 8, 2009, 

alleged that the conspirators saw their illicit plans bear fruit

when they “falsely represented, directly or indirectly, in 

submitting claims for payments that they had not engaged in 

common discussions or agreements regarding prices to be offered 

and terms and conditions of service,” such terms and conditions 

including “allocation of territories or market share . . . for 

work performed under . . . [DPM] Government contracts . . . for 

transportation of military personal property.” Bunk Complaint 

¶ 136.4

In a similar fashion, the Complaint filed by Ammons (the 

“Ammons Complaint”) asserted, inter alia, that Gosselin 

facilitated “a bid rigging scheme,” in furtherance of which it 

 4 The Bunk Complaint is found at J.A. 294-340. (Citations 

herein to “J.A. ___” refer to the contents of the Joint Appendix 

filed by the parties to this appeal.)
15

and Pasha illegally “control[led] the access to German freight 

agents for [ITGBL] origin and destination services[.]” Ammons 

Complaint ¶¶ 50, 61.5 This monopoly of access, according to 

Ammons, enabled the conspirators to “raise and control the 

prices for a critical feature of the services necessary to 

service the traffic channel between Germany and the United 

States.” Id. ¶ 61.

The Ammons Complaint was superseded on July 18, 2008, by 

the United States’ Complaint in Intervention (the “Government 

Complaint”). See 31 U.S.C. § 3730(b)(2) (“The Government may 

elect to intervene and proceed with the action.”).6 The material

allegations of the Government Complaint echoed those of its 

Ammons predecessor, in particular the asserted purpose of the 

conspiracy, which “was to obtain collusive, artificially 

inflated, and noncompetitive prices for transportation services 

performed in connection with [ITGBL] international household 

goods shipments.” Government Complaint ¶ 6. To advance the

illicit aims of the conspiracy, according to the government, 

Gosselin knowingly “submitted or caused to be submitted false 

and inflated claims for payment to the United States . . . and 

 5 The Ammons Complaint is found at J.A. 243-58.

6 The Government Complaint is found at J.A. 263-93.
16

made, used or caused to be made or used false records or 

statements to get those claims paid or approved.” Id.7

The government thus maintained that Gosselin was liable 

under the FCA for treble damages and civil penalties, see

Government Complaint ¶¶ 87-93 (First Cause of Action), or, in 

the alternative, for common law fraud, for conspiracy to defraud

the United States, and for unjust enrichment, see id. ¶¶ 94-108

(Second through Fourth Causes of Action). Bunk, for his part, 

pleaded various FCA theories of liability against Gosselin and 

others. See Bunk Complaint ¶¶ 145-59 (Counts I through V). 

Suing in his individual capacity, Bunk joined several additional 

claims, including a 42 U.S.C. § 1985 claim for conspiracy to 

 7 Though subordinated as a result of the government’s 

intervention, Ammons remained in the suit, maintaining his 

status as a party-plaintiff. See 31 U.S.C. § 3730(c)(1) (“[T]he 

person bringing the action . . . shall have the right to 

continue as a party to the action.”). Bunk’s role was 

unchanged, as the government declined to intervene in his 

proceeding. See id. § 3730(c)(3) (“If the government elects not 

to proceed with the action, the person who initiated the action 

shall have the right to conduct the action.”). The government’s 

decisions as to intervention bear not only on who conducts the 

litigation in the respective matters, but also the eventual 

award, if any, to the relator. Compare id. § 3730(d)(1) 

(providing that where “the Government proceeds with an action 

brought by a person under subsection (b), such person shall 

. . . receive at least 15 percent but not more than 25 percent 

of the proceeds of the action or settlement of the claim”), with

id. § 3730(d)(2) (“If the Government does not proceed with an 

action under this section, the person bringing the action or 

settling the claim shall receive an amount . . . not less than 

25 percent and not more than 30 percent of the proceeds.”).
17

interfere with his civil rights, see id. ¶¶ 160-62 (Count VI), 

and state law claims for tortious interference with contractual 

relations, for antitrust and related violations, and for 

defamation, see id. ¶¶ 163-75 (Counts VII through IX).8

C.

On the basis of the prior criminal proceedings against 

Gosselin, the district court granted partial summary judgment on 

liability to the government on its FCA claim insofar as it 

pertained to the Cartwright Channels. The remaining issues in 

the consolidated matters were tried in Alexandria before a jury, 

beginning on July 18, 2011. The government explained in its 

opening statement that Gosselin, pursuant to the conspiracy 

engendered by the Sonthofen Agreement, engaged in two general 

types of wrongful conduct: (1) unlawfully colluding with its 

industry cohorts to inflate the landed rate component of ITGBL 

bids involving all German channels, which caused those bids as a 

whole — and the resultant DOD payments — to be higher than they 

would have been absent such collusion (the “price-fixing”

conduct); and (2) in concert with Pasha and others, improperly 

 8 Although the government did not intervene in the Bunk 

proceeding, the district court determined that all of Bunk’s 

claims had nonetheless been effectively superseded by the 

Government Complaint, except for Count II of the Bunk Complaint, 

which sought recovery under the FCA for Gosselin’s actions in 

connection with the DPM scheme. The court’s ruling in that 

regard has not been appealed.
18

influencing Covan and Cartwright to withdraw their initial low 

bids in the IS01 and IS02 cycles, respectively, and dissuading 

its competitors from matching the Covan and Cartwright bids in 

the affected channels (the “bid-rigging” conduct). See

Transcript of Trial, July 18, 2011, at 54-58. For these 

asserted misdeeds, the government sought both categories of 

redress permitted by § 3729(a), that is, a fixed civil penalty 

for each false claim, plus three times the amount of actual 

damages it had sustained. Bunk, by contrast, chose to forgo 

proof of damages, suing only for civil penalties.

At the close of the government’s case-in-chief, on July 28, 

2011, the district court granted in part Gosselin’s motion for 

judgment as a matter of law, concluding that the company was 

entitled to immunity under the Shipping Act, and it therefore 

could not be held accountable under the FCA for its price-fixing 

conduct. See Fed. R. Civ. P. 50(a). That conduct, the court 

explained, was the only basis for imposing liability on Gosselin 

for the inflated landed rate affecting all ITGBL channels 

starting and ending in Germany, and not merely the Covan and 

Cartwright Channels that were the sole bid-rigging targets. The 

court likewise awarded judgment to Gosselin on the alternative, 

common law claims, with the result that the only portion of the 

government’s case permitted to proceed was its FCA claim, and 
19

that only insofar as it related to Gosselin’s bid-rigging 

conduct directed at Covan and Cartwright.

Conversely, the district court denied Gosselin’s motion for 

judgment as a matter of law with respect to Bunk’s claim

premised on the DPM scheme. The court explained that the 

conduct engendering FCA liability as to that claim was not 

grounded in immunized price-fixing, but instead manifested in 

the subsequent Certificate of Independent Price Determination

(the “CIPD”) filed by Gosselin. The CIPD was designed to 

affirmatively assure the MTMC that the successful DPM contractor

had not discussed pricing or soliciting strategy with other 

potential suppliers. Bunk had adduced evidence at trial, the 

court recalled, that Gosselin had met with its competitors “and 

agreed on prices that would be charged and who would service 

territories regardless of who was awarded the contract.” 

Transcript of Trial, July 28, 2011, at 1059. That evidence 

created “a triable issue for the jury” as to whether Gosselin 

“acted in a way inconsistent with its certification,” and, 

assuming that the CIPD was false, “whether it was a material 

misstatement and whether [it was made] knowingly.” Id. at 1059-

60.

Gosselin proceeded with its defense, followed by rebuttal 

from Bunk and from the government. At the conclusion of all the 

evidence, the jury was instructed by the district court, heard 
20

the parties’ closing arguments, and retired to consider its 

verdict. On August 4, 2011, after about nine hours of 

deliberations over two days, the jury returned a verdict in 

favor of Gosselin as to that portion of the government’s FCA 

claim stemming from the Covan Channels. In regard to the

Cartwright portion of the FCA claim, for which the district 

court had previously ruled Gosselin liable as a matter of law, 

the jury found that the government had proved 4,351 instances of 

false or fraudulent claims. Finally, the jury found Gosselin 

culpable under the FCA for its role in the DPM scheme, as set 

forth in Count II of the Bunk Complaint.

D.

1.

Through its memorandum opinion of October 19, 2011, the 

district court disposed of various post-trial motions filed by

the parties. First, the court deemed the evidence insufficient 

to support the jury’s finding of 4,351 false claims in 

connection with the Cartwright Channels; it thus granted 

Gosselin partial judgment as a matter of law, or, alternatively, 

a new trial on the civil penalties remedy pertaining to the 

government’s First Cause of Action. See Fed. R. Civ. P. 

50(c)(1). We characterize the judgment as “partial” because the 

district court declined to decree that the government recover 

nothing. To the contrary, in line with its prior ruling 
21

regarding the Cartwright Channels, the court entered judgment 

for the United States in the sum of $5,500. The amount of the 

judgment reflects the court’s conclusion that the whole of 

Gosselin’s bid-rigging misconduct established nothing more than 

a baseline false claim, for which the government — in the 

absence of more sophisticated proof — was entitled to receive 

only a single civil penalty.9

Moving on to consider the damages remedy, the district 

court observed that the government had collected approximately 

$14 million from settling codefendants. That amount was far in 

excess of the presumptive damages, i.e., the $865,000 that 

Gosselin paid as restitution in the criminal proceedings, such 

liability under the FCA being increased to $2,595,000 upon 

application of the trebling modifier. The court thus decided

that Gosselin was entitled to a full offset, with no damages

remaining payable. Lastly, the court denied Gosselin’s motion 

for judgment as a matter of law with respect to Count II of the 

Bunk Complaint and held Gosselin liable for 9,136 false claims, 

 9 See United States ex rel. Harrison v. Westinghouse 

Savannah River Co., 352 F.3d 908, 920 (4th Cir. 2003) 

(ascertaining defendant liable for twenty-six false claims, 

consisting of initial fraudulent certification plus twenty-five 

resultant invoices). The government has not appealed the 

district court’s Rule 50(c) determination as to the number of 

Cartwright Channel claims.
22

corresponding to the number of invoices stipulated by the 

parties to have been submitted under the DPM contract.

2.

It remained for the district court to calculate the 

appropriate civil penalties for the Bunk false claims. Treating

each of the 9,136 claims as a discrete basis for liability under 

§ 3729(a), imposition of no more than the statutory minimum of 

$5,500 would have resulted in a cumulative penalty just in 

excess of $50 million ($50,248,000).10 Gosselin contended that a 

multi-million-dollar award would be grossly out of proportion to 

its misconduct, and thus in contravention of the constitutional

proscription against excessive fines. See U.S. Const. amend. 

XIII (“Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.”). 

The district court agreed, and by memorandum opinion of 

February 14, 2012, expressed its view that the relatively 

isolated harm caused by the DPM scheme, under which the 

government paid a total of approximately $3.3 million for the 

 10 Pursuant to 28 C.F.R. § 85.3(a)(9), persons adjudged 

liable under the FCA are, as of September 29, 1999, subject to 

increased civil penalties amounting to a minimum of $5,500 and a 

maximum of $11,000. See Federal Civil Penalties Inflation

Adjustment Act of 1990, Pub. L. No. 101-410, § 535, 104 Stat. 

890 (1990), as amended by Pub. L. 104-134, 110 Stat. 131 (1996) 

(directing that agency heads adjust and publish via regulation 

certain civil penalties).
23

packing and loading line item, could not justify a $50 million 

penalty. Concluding that it was unauthorized by the FCA to 

award less than the $5,500 minimum per claim, and, further, that 

each of the 9,136 claims required an award, the court rejected 

Bunk’s proposal, in consultation with the government, to accept 

$24 million in settlement of the judgment. Indeed, the court 

concluded in the alternative that, under the circumstances, any 

penalty in excess of $1.5 million would be constitutionally 

excessive, and in the event the statute permitted an assessment 

of less than $50,248,000, it would award $500,000.

The district court directed the entry of final judgment as 

to the claims set forth in the operative complaints against 

Gosselin.11 Encapsulating the various jury findings and legal 

rulings set forth above, the court ordered:

(1) judgment in favor of the Plaintiff the United 

States of America and against Defendants [Gosselin], 

 11 See Fed. R. Civ. P. 54(b) (instructing that “[w]hen an 

action presents more than one claim . . . or when multiple 

parties are involved, the court may direct entry of a final 

judgment as to one or more, but fewer than all, claims or 

parties . . . if the court expressly determines that there is no 

just reason for delay”). The court deferred decision on the 

relators’ claims for a percentage of the government’s recovery, 

together with their requests for FCA attorney fees from 

Gosselin, pending final disposition of this appeal. Also left 

pending is the fate of the lone remaining defendant in the case, 

Government Logistics, N.V., which was alleged liable as a 

successor to Gosselin. The court denied the parties’ crossmotions for summary judgment as to the successor liability 

question, holding it over for eventual determination by trial.
24

jointly and severally, in the amount of Five Thousand, 

Five Hundred Dollars ($5,500), on the First Cause of 

Action in the [Government] Complaint . . . ; (2) 

judgment in favor of Defendants [Gosselin] and against 

the Plaintiff the United States of America on the 

Second, Third, and Fourth Causes of Action in the 

[Government] Complaint . . . ; (3) judgment in favor 

of [Bunk] and against the Defendants [Gosselin] as to 

liability on Count II of the [Bunk] Complaint; and (4) 

judgment in favor of Defendants [Gosselin] and against 

the United States of America and [Bunk] as to civil 

penalties on Count II of the [Bunk] Complaint.

J.A. 1621.

By notice timely filed on March 13, 2012, Bunk and Ammons 

jointly appealed the district court’s Rule 54(b) judgment (No. 

12-1369). Thereafter, on March 27, 2012, Gosselin crossappealed (No. 12-1417). The government noticed its appeal (No. 

12-1494) on April 13, 2012.12 We possess jurisdiction pursuant 

to 28 U.S.C. § 1291.

II.

Intricate issues of law underlie the judgment below and 

permeate these several appeals. Most of the issues concern the 

construction and application of federal statutes in a fashion 

 12 In the typical civil case, a party seeking to appeal must 

file notice thereof in the district court “within 30 days after 

entry of the judgment or order appealed from.” Fed. R. App. P. 

4(a)(1)(A). If, however, “one of the parties is . . . the 

United States,” or an agency or official representative thereof, 

“any party” to the litigation may appeal within 60 days 

following the entry of the judgment or order at issue. Id.

4(a)(1)(B).
25

consistent with the Constitution. These legal issues were, with 

certain exceptions identified below, considered and decided in 

the first instance by the district court, whose rulings thereon 

we review de novo. See United States v. Under Seal, 709 F.3d 

257, 261 (4th Cir. 2013) (deeming questions of statutory 

interpretation and constitutional challenges subject to de novo 

review).

III.

A.

1.

Gosselin suggests that Bunk lacks standing to sue, thereby 

challenging the jurisdiction of the federal courts as to that 

portion of the consolidated litigation in which the government 

has not intervened. See U.S. Const. art. III, § 2 (limiting 

judicial power of United States solely to adjudication of cases 

and controversies). We thus turn our attention at the outset to 

Gosselin’s cross-appeal. See United States v. Day, 700 F.3d 

713, 721 (4th Cir. 2012) (“[C]ourts must resolve jurisdictional 

Article III standing issues before proceeding to consider the 

merits of a claim.”). According to Gosselin, Bunk’s decision to 

bypass proof of actual damages and instead seek only civil 

penalties demonstrates that he suffered no injury in fact caused 

by Gosselin, such being an essential component of standing. See
26

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 

(observing that “irreducible constitutional minimum of standing 

contains three elements,” i.e., injury in fact, traceability of 

injury to defendant’s conduct, and redressability); accord Vt. 

Agency of Natural Res. v. United States ex rel. Stevens, 529 

U.S. 765, 771 (2000).

The Supreme Court’s decision in Vermont Agency is 

dispositive of the question. Therein, Justice Scalia, writing 

for the Court, reiterated that “[a]n interest unrelated to 

injury in fact is insufficient to give a plaintiff standing.” 

529 U.S. at 772. The Court nevertheless instructed “that 

adequate basis for the relator’s suit . . . is to be found in 

the doctrine that the assignee of a claim has standing to assert 

the injury in fact suffered by the assignor.” Id. at 773. The 

relator provisions of the FCA suffice in that regard, the Court 

reasoned, insofar as they occasion a “partial assignment of the 

Government’s damages claim.” Id. This assignment in part, 

especially when viewed in the context of the long tradition of 

qui tam actions — originating in England about 500 years before 

the ratification of the Constitution — see id. at 774-75, 
27

“leaves no room for doubt that a qui tam relator under the FCA 

has Article III standing.” Id. at 778.13

Gosselin, however, seizes upon the Supreme Court’s 

characterization of an FCA action as alleging both an “injury to 

[the government’s] sovereignty arising from violation of its 

laws” and a “proprietary injury resulting from the alleged 

fraud,” 529 U.S. at 771, asserting that the civil penalties 

provision redresses strictly the former, with damages payable 

dollar for dollar to remedy the latter. Gosselin suggests that 

only the proprietary injury is an injury in fact for standing 

purposes, and it relies for support on the Vermont Agency

language quoted in the preceding paragraph, pointing out that 

Justice Scalia spoke only of the FCA assigning the “damages 

claim” on behalf of the government. Thus, the argument goes, 

Bunk’s election to forgo proof of damages and pursue penalties 

solely for the government’s sovereignty injury — purportedly 

non-assignable — strips him of standing to maintain suit and 

thereby moots his portion of the case. See Arizonans for 

Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) 

 13 The Supreme Court’s invocation of the principle of 

assignment to establish relators’ standing under the FCA is 

sufficient to distinguish Lujan and analogous authorities relied 

on by Gosselin, in which plaintiffs suing to vindicate 

exclusively their own rights were required to have themselves 

sustained a palpable injury in fact.
28

(“Mootness has been described as the doctrine of standing set in 

a time frame: The requisite personal interest that must 

commence at the outset of the litigation . . . must continue 

throughout its existence.” (citations and internal quotation 

marks omitted)).

We are scarcely convinced that the Supreme Court in Vermont 

Agency would have embarked by mere implication on the novel 

dissection urged by Gosselin, without so much as a nod that it 

was breaking new ground. The judgment entered below, 

unchallenged on its merits, confirms that the government 

sustained injury by virtue of Gosselin’s conduct, and it is “the 

United States’ injury in fact,” without reference to the source 

of that injury, that the Court has said “suffices to confer 

standing” on FCA relators like Bunk, who is not otherwise 

alleged unqualified. See Vermont Agency, 529 U.S. at 774. That 

Bunk made a tactical decision during the course of litigation to 

pursue only civil penalties altered in no material way the 

fundamental legal relationship among him as plaintiff and 

assignee, Gosselin as defendant and tortfeasor, and the 

government as victim and assignor.

Moreover, in documenting the use of qui tam actions over 

the centuries to buttress the concept of relator standing, the 

Vermont Agency Court discussed so-called “informer” statutes 

that had been enacted in England and, later, in the American 
29

colonies. These statutes, designed to redress a host of wrongs 

such as piracy, privateering, and horse thievery, “allowed 

informers to obtain a portion of the penalty as a bounty for 

their information, even if they had not suffered an injury 

themselves.” See 529 U.S. at 775-77 & nn. 6-7. We think it

highly unlikely that the Court would have relied on the informer 

statutes to reach the result it did in Vermont Agency had it 

intended future relators, such as Bunk, seeking precisely the 

same sorts of penalty bounties, to be without standing to sue. 

Successful FCA relators can and do recover both damages and 

civil penalties. See 31 U.S.C. § 3729(a) (specifying 

defendant’s liability “for a civil penalty . . . plus 3 times 

the amount of damages” sustained by the government (emphasis 

added)). The two remedies were thus designed to be unitary, or 

at least complementary. See United States ex rel. Marcus v.

Hess, 317 U.S. 537, 551-52 (1943) (ascertaining that dual remedy 

provisions facilitate the “chief purpose” of the FCA to ensure 

“that the government would be made completely whole,” and 

acknowledging the problem Congress confronted in “choosing a 

proper specific sum which would give full restitution”). 

Exemplifying the intended synergy, the penalty provision 

fulfills a function similar to that of the damages multiplier. 

Cf. United States v. Bornstein, 423 U.S. 303, 315 (1976) 

(touting usefulness of multiplier “to compensate the Government 
30

completely for the costs, delays, and inconvenience occasioned 

by fraudulent claims”). As the court of appeals emphasized in 

United States ex rel. Main v. Oakland City University, 426 F.3d 

914, 917 (7th Cir. 2005), the FCA “provides for penalties even 

if (indeed, especially if) actual loss is hard to quantify.”

The practical integration of the remedial provisions 

strongly suggests that they should not be evaluated in isolation 

for standing purposes. This seems all the more so when one also 

considers the similar integration between FCA relators and the 

government; the statute provides that both share in the ultimate

recovery regardless of which directs the litigation. To deny a 

relator its bounty on the ground that it cannot pursue penalties 

alone would be to deny the United States due recompense, or, in 

the alternative, to deprive the government of its choice to 

forgo intervention. We decline Gosselin’s invitation to 

interpret the FCA in a manner that disrupts the statute’s 

careful design. In holding that relators seeking solely civil 

penalties enjoy standing to sue, we find ourselves in agreement 

with the two other circuits that have decided the issue. See

United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 

787, 804 (10th Cir. 2002), rev’d on other grounds, 549 U.S. 457, 

479 (2007); Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 

752 n.3 (5th Cir. 2001) (en banc).
31

2.

Gosselin presses on, insisting that if Bunk’s standing 

depends on Congress having assigned him the right under the FCA 

to seek redress for the government’s sovereign injury, such an 

action by the legislative branch contravenes Article II of the 

Constitution, specifically the Appointments Clause and the Take 

Care Clause. The former confers on the President the exclusive 

authority to appoint all “Officers of the United States,” except 

those who require “the Advice and Consent of the Senate” or 

whose appointment Congress otherwise vests “in the Courts of 

Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, 

cl. 2. The latter mandates that the President “take Care that 

the Laws be faithfully executed.” Id. art. II, § 3. Gosselin 

contends that Congress, through the FCA, has effectively 

appointed Bunk an officer of the United States. This alleged 

usurpation of the President’s constitutional role, the argument 

goes, has further resulted in Bunk impermissibly wielding the 

power reserved to the executive to penalize Gosselin’s violation 

of federal law.

Being derivative of the failed threshold assault on relator 

standing pursuant to Article III of the Constitution, the more 

nuanced Article II attacks on the FCA were purposely and 

pointedly left unresolved by the Supreme Court in Vermont 

Agency. Justice Scalia was careful to note that the Court
32

“express[ed] no view” on the constitutionality of the FCA under 

the Appointments and Take Care Clauses, because the statute was 

not contested on either of those bases. See 529 U.S. at 778 

n.8. Importantly for our purposes, however, the Court 

recognized that “the validity of qui tam suits under those 

provisions,” in contrast to the standing afforded the relator to 

bring suit, was not “a jurisdictional issue” requiring analysis 

and decision. Id.

The same is true here. Gosselin’s constitutional 

challenges to the FCA are newly raised in its cross-appeal, 

having never been presented to the district court for 

consideration in the first instance. Although the question of 

Bunk’s standing strikes at the heart of federal jurisdiction 

limited under Article III to cases and controversies, whether 

the FCA contravenes Article II does not.

As one of our esteemed colleagues has aptly observed, “it 

remains the law of this circuit that when a party to a civil 

action fails to raise a point at trial, that party waives review 

of the issue unless there are exceptional or extraordinary 

circumstances justifying review.” Corti v. Storage Tech. Corp., 

304 F.3d 336, 343 (4th Cir. 2002) (Niemeyer, J., concurring)

(collecting cases). We discern no compelling reason to depart 

from the usual rule in this case. See Singleton v. Wulff, 428 

U.S. 106, 121 (1976) (“The matter of what questions may be taken 
33

up and resolved for the first time on appeal is one left 

primarily to the discretion of the courts of appeals.”). The 

Vermont Agency Court exercised its discretion to withhold ruling 

on the Article II challenges not properly before it, and, under 

similar circumstances, we do the same.

B.

1.

We move on to address Bunk’s appeal of the district court’s 

ruling that it lacked authorization to enter judgment against 

Gosselin on the 9,136 false claims for civil penalties amounting 

to less than $50 million and change (insofar as $248,000 can be 

considered “change”), notwithstanding that Bunk was willing to 

accept a remittitur to $24 million. Bunk suggests that, to the 

extent the district court correctly concluded that the Eighth 

Amendment is contravened if the full force of the FCA is brought 

to bear on Gosselin, the statute can nonetheless be reformed 

within constitutional tolerances by imposing a civil penalty on 

fewer claims than proved or stipulated; the same result could be 

obtained by disregarding the $5,500 floor per claim. In support 

of the reformation approach, Bunk points to Ayotte v. Planned 

Parenthood of Northern New England, in which the Supreme Court 

explained that “when confronting a flaw in a statute, we try to 

limit the solution to the problem. We prefer, for example, to 

enjoin only the unconstitutional applications of a statute while 
34

leaving other applications in force.” 546 U.S. 320, 328-29 

(2006). We are content to leave the FCA as it is, however, by 

reaching the same result another way.

We begin with the proposition that litigation usually 

commences to redress a perceived wrong against one or more 

private persons or entities, or the public at large. As a 

society, we seek to encourage this structured, civilized form of 

dispute resolution, so it makes sense that parties availing 

themselves of the courts to sue possess considerable latitude —

so far as may be fair to the defendant — over how the suit

progresses and ultimately culminates. In the normal course, the 

plaintiff or prosecutor determines the claims or charges to 

bring, how much discovery or investigation is reasonable to 

undertake, the evidence and testimony introduced to sustain the 

burden of proof, and whether to initiate or accept an offer of 

compromise.

The primacy of the complaining party is reflected in the 

legal vernacular. We often speak of the civil plaintiff being 

the “master of his complaint.” See, e.g., Lincoln Prop. Co. v. 

Roche, 546 U.S. 81, 91 (2005) (“In general, the plaintiff is the 

master of the complaint and has the option of naming only those 

parties the plaintiff chooses to sue.” (citation and internal 

quotation marks omitted)); Johnson v. Advance Am., 549 F.3d 932, 

937 (4th Cir. 2008) (acknowledging that “plaintiffs, as masters 
35

of their complaint, can choose to circumscribe their class 

definition” to escape federal jurisdiction under Class Action 

Fairness Act); Pueschel v. United States, 369 F.3d 345, 356 (4th 

Cir. 2004) (explaining that claim raised in prior proceedings

but not adjudicated was subsequently precluded because plaintiff 

was responsible “as the master of her complaint, to make sure 

that the district court identified all of her claims”). 

Similarly, in the criminal context, it is taken for granted that 

prosecutors enjoy substantial discretion with regard to the 

persons and offenses they elect to charge. See Bordenkircher v. 

Hayes 434 U.S. 357, 364 (1978) (“In our system, so long as the 

prosecutor has probable cause to believe that the accused 

committed an offense defined by statute, the decision whether or 

not to prosecute, and what charge to file or bring before a 

grand jury, generally rests entirely in his discretion.”).

It is hardly surprising, then, that the FCA was crafted in 

acknowledgment of the flexibility typically afforded the 

government to right a public wrong. At the threshold, the

United States is vested with the discretion to file or forgo 

suit. See 31 U.S.C. § 3730(a) (providing that, after diligent 

investigation, “[i]f the Attorney General finds that a person 

has violated or is violating section 3729, the Attorney General 

may bring a civil action under this section against the person

(emphasis added)). If a relator initiates suit, then the 
36

government “may elect to intervene and proceed with the action.” 

Id. § 3730(b)(2) (emphasis added). Upon intervention and 

notwithstanding the objection of the relator, the government

may, after a hearing before the court, dismiss or settle the 

suit, see id. § 3730(c)(2)(A)-(B), prerogatives that, absent 

intervention, inhere in either the government or a relator suing 

as the government’s assignee.

By requesting the district court to enter judgment for a 

reduced amount of $24 million on the claims he brought, Bunk, as 

the government’s assignee, was merely exercising his discretion 

to attempt to bring the case to a suitable conclusion following 

the jury’s verdict in his favor. A dispute can be settled, of 

course, at any time before litigation has commenced, during its 

pendency, or after it has finished. And settlements often take 

the form of a consent judgment. Bunk’s proposal, being 

unilateral, was not a settlement. It was, however, doubtlessly

intended to make the prospect of settlement more palatable for 

Gosselin, or — failing that immediate resolution — to smooth 

Bunk’s path before the district court and on appeal against the 

looming Eighth Amendment challenge.

In short, Bunk’s effort at a voluntary remittitur was just 

the sort of arrow that a plaintiff is presumed to possess within 

his quiver. It must be the rare case indeed where the plaintiff 

prevails before a jury, then, under no overt influence from the 
37

court or the defendant, elects to take a lesser judgment before 

the ink has dried on the verdict form. Nevertheless, we imagine 

that the plaintiff’s discretion to willingly do so is virtually 

unbounded. In United States v. Mackby, 339 F.3d 1013 (9th Cir. 

2003), the district court entered judgment against the defendant 

under the FCA for treble damages in excess of $174,000 stemming 

from 1459 false claims. Although the defendant was also liable 

for civil penalties on each claim, the court, at the 

government’s request, assessed the $5,000 minimum on only 111 of 

the claims to add $555,000 to the judgment. Neither the court 

nor the defendant questioned the government’s discretion to 

proceed in such a manner. Accord Peterson v. Weinberger, 508 

F.2d 45, 55 (5th Cir. 1975) (approving entry of judgment on 

civil penalties for only 50 of 120 false claims “where the 

imposition of forfeitures might prove excessive and out of 

proportion to the damages sustained by the Government”).

By our observations, we do not mean to imply that a 

district court is at the mercy of either the government or a 

relator in an FCA proceeding. Quite the opposite is true: the 

court remains in firm control of those aspects of the litigation 

over which it has always had domain, including without 

limitation scheduling and discovery, the admission and exclusion 

of evidence, and the conduct of trial. But the court must 

permit the government or its assignee the freedom to navigate 
38

its FCA claims through the uncertain waters of the Eighth 

Amendment.

We reluctantly acknowledge that the perceived tension 

between the FCA and the Excessive Fines Clause of the Eighth 

Amendment, which so understandably concerned the district court, 

is a monster of our own creation. The FCA as enacted could 

arguably have been construed as authorizing a total civil 

penalty not to exceed $11,000 (in addition to treble damages) 

against anyone planning or executing a scheme to defraud the 

government. See 31 U.S.C. § 3729(a) (providing that any person

presenting, facilitating through certain means, or conspiring to 

present government with a false or fraudulent claim “is liable 

to the United States Government for a civil penalty” now ranging 

from $5,500 to $11,000 (emphasis added)). 

We eschewed such a narrow interpretation, however, in

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (4th 

Cir. 1999) (“Harrison I”), a relator’s appeal from the district 

court’s dismissal order, wherein the defendant was alleged to 

have misrepresented costs and withheld disclosures to obtain 

subcontracting approval from the government. With respect to 

the defendant’s requests for reimbursement of its payments to 

the subcontractor, we concluded that the FCA “attaches 

liability, not to the underlying fraudulent activity . . . but 

to the claim for payment.” Harrison I, 176 F.3d at 785 
39

(citation and internal quotation marks omitted). Moreover, 

“each [invoice] constitutes a claim under the False Claims Act,”

id. at 792, on the ground that these invoiced “claim[s] for 

payment . . . [were] . . . submitted under a contract which was 

fraudulently approved,” id. at 793-94. In so ruling, we took 

note of substantial amendments to the FCA thirteen years 

earlier, reflecting the determination of Congress to “‘enhance 

the Government's ability to recover losses sustained as a result

of fraud.’” Id. at 784 (quoting S. Rep. No. 99-345, at 2

(1986), reprinted in 1986 U.S.C.C.A.N. 5266)).

That approach proved just the tonic in the Harrison cases,

where, it would turn out, the defendant was penalized nearly 

$200,000 for submitting twenty-five false invoices. See United 

States ex rel. Harrison v. Westinghouse Savannah River Co., 352 

F.3d 908, 913, 920 (4th Cir. 2003) (“Harrison II”). It was 

inevitable, we suppose, in view of the vast number of government 

contracts — many of prodigious size and sophistication — that 

we would confront FCA actions involving thousands of invoices, 

thus exposing culpable defendants to millions of dollars of

liability for civil penalties. We are entirely comfortable with 

that proposition. When an enormous public undertaking spawns a 

fraud of comparable breadth, the rule set forth in Harrison I

helps to ensure what we reiterate is the primary purpose of the 
40

FCA: making the government completely whole. See Harrison II, 

352 F.3d at 923 (citing Hess, 317 U.S at 551-52). 

The district court’s methodology cannot be said to have 

furthered that statutory purpose. Indeed, an award of nothing 

at all because the claims were so voluminous provides a perverse 

incentive for dishonest contractors to generate as many false 

claims as possible, siphoning ever more resources from the 

government. Though we agree that the number of false invoices 

presented is hardly a perfect indicator of the relative 

liability that ought to attach to an FCA defendant, injustice is 

avoided in the particular case by the discretion accorded the 

government and a relator to accept reduced penalties within 

constitutional limits, as ultimately adjudged by the courts.

2.

An important question remains as to whether $24 million is 

an excessive fine as applied to Gosselin’s misconduct in 

connection with the DPM scheme. According to the Supreme Court, 

“[t]he touchstone of the constitutional inquiry under the 

Excessive Fines Clause is the principle of proportionality: The 

amount of the forfeiture must bear some relationship to the 

gravity of the offense that it is designed to punish.” United 

States v. Bajakajian, 524 U.S. 321, 334 (1998). The test is by 

no means onerous. A cumulative monetary penalty such as that

imposed under the FCA will violate the Eighth Amendment 
41

proscription against excessive fines in the infrequent instance 

that it is “grossly disproportional to the gravity of a 

defendant’s offense.” Id. 

The defendant in Bajakajian, travelling with his family 

from the United States to Cyprus, was detained by customs 

officials in Los Angeles upon being discovered with cash in his 

possession totalling $357,144. The defendant pleaded guilty to 

attempting to leave the United States with more than $10,000 

without reporting it, see 31 U.S.C. § 5316(a)(1)(A), and the 

government sought forfeiture of the entire amount. In reviewing 

the judgment of the Ninth Circuit that the government was 

entitled to only $15,000, the Supreme Court assessed the gravity 

of the defendant’s offense by its nature and the harm it caused.

In that regard, the Court explained that the defendant’s 

“crime was solely a reporting offense. It was permissible to 

transport the currency out of the country so long as he reported 

it.” Bajakajian, 524 U.S. at 337. Moreover, the “violation was 

unrelated to any other illegal activities. The money was the 

proceeds of legal activity and was to be used to repay a lawful 

debt.” Id. at 338. Further, the Court observed, the defendant 

did “not fit into the class of persons for whom the statute was 

principally designed: He is not a money launderer, a drug 

trafficker, or a tax evader.” Id. Conviction of the failureto-report offense carried a term of imprisonment of no longer 
42

than six months and a maximum fine of $5,000, “confirm[ing] a 

minimal level of culpability.” See id. at 338-39. Finally, the 

resultant harm from the defendant’s failure to report the cash

he was carrying was described as “minimal,” with “no fraud on 

the United States, and . . . no loss to the public fisc.” Id.

at 339. The Court thus affirmed the judgment of the court of 

appeals, recognizing that the amount sought was “larger than the 

$5,000 fine imposed by the District Court by many orders of 

magnitude, and it bears no articulable correlation to any injury 

suffered by the Government.” Id. at 340.

The circumstances of this appeal could not be more readily 

distinguishable from those evaluated by the Supreme Court in

Bajakajian. Signed into law by President Lincoln in the midst 

of the Civil War, the FCA was enacted specifically “in response

to overcharges and other abuses by defense contractors.” 

Harrison I, 176 F.3d at 784. As a defense contractor, Gosselin 

is precisely within the class of wrongdoers contemplated by the 

FCA. Gosselin did not commit some sort of technical offense; 

its misdeeds were of substance. For analogous misconduct in 

connection with the ITGBL program as it pertained to the 

Cartwright Channels, Gosselin was convicted of conspiring to 

defraud the United States, as proscribed by 18 U.S.C. § 371, and 

of conspiring to restrain trade, in contravention of 15 U.S.C. 
43

§ 1. Those offenses carry maximum prison terms under the 

pertinent statutes of, respectively, five and ten years.

Though Bunk sought no damages, the question of economic 

harm to the government arising from the DPM false statements was 

fiercely contested before the district court. The court 

ultimately concluded that there was insufficient evidence of any 

harm, a notion seemingly inconsistent with Gosselin’s apparent 

profit motive in making the statements at issue. The undisputed 

evidence revealed a substantial short-term price increase under 

the DPM contract for similar services previously provided, 

perhaps in excess of $2 million, and there is no doubt that the 

government has suffered significant opportunity costs from being 

deprived of the use of those funds for more than a decade.

For purposes of our Eighth Amendment analysis, however, the 

concept of harm need not be confined strictly to the economic 

realm. The prevalence of defense contractor scams, as often 

portrayed in the media, shakes the public’s faith in the 

government’s competence and may encourage others similarly 

situated to act in a like fashion. We made the proper point 

more than fifty years ago in Toepleman v. United States:

[N]o proof is required to convince one that to the 

Government a false claim, successful or not, is always 

costly. Just as surely, against this loss the 

Government may protect itself, though the damage be 

not explicitly or nicely ascertainable. The [FCA] 

seeks to reimburse the Government for just such 

losses. For a single false claim[, the civil penalty] 
44

would not seem exorbitant. Furthermore, even when 

multiplied by a plurality of impostures, it still 

would not appear unreasonable when balanced against 

the expense of the constant Treasury vigil they 

necessitate.

263 F.2d 697, 699 (4th Cir. 1959). Thus, to analyze whether a 

particular award of civil penalties under the FCA is “grossly” 

disproportionate such as to offend the Excessive Fines Clause, 

we must consider the award’s deterrent effect on the defendant 

and on others perhaps contemplating a related course of 

fraudulent conduct.

Under the circumstances before us, we are satisfied that 

the entry of judgment on behalf of Bunk for $24 million on the 

DPM claim would not constitute an excessive fine under the 

Eighth Amendment. That amount, we think, appropriately reflects 

the gravity of Gosselin’s offenses and provides the necessary 

and appropriate deterrent effect going forward. To the extent 

that the district court was of the view that the constitutional 

threshold could not exceed $1.5 million, we have reviewed its 

decision de novo, see Bajakajian, 524 U.S. at 336 & n.10, and 

have come to the different conclusion set forth above.14

 14 Gosselin interposes a number of arguments to the effect 

that, for myriad reasons, Bunk and the government are estopped 

from advocating for a substantial penalty. See Br. for 

Defendants-Appellees/Cross Appellants at 36-39, 59-65. We have 

carefully considered each of these arguments, and we reject 

them.
45

C.

The government appeals the district court’s Rule 50(a) 

determination as to the larger portion of its FCA claim, that 

is, those aspects of the claim seeking to hold Gosselin liable 

for its price-fixing conduct affecting all channels with a 

German terminus. For purposes of this discussion, we exclude 

the smaller portion of the FCA claim relating to the Cartwright 

Channels, for which the government has received judgment and has 

not appealed. See supra note 9. The linchpin of the court’s 

decision was a provision of the Shipping Act of 1984, 46 U.S.C. 

App. §§ 1701-1719, barring application of the antitrust laws to 

“any agreement or activity concerning the foreign inland segment 

of through transportation that is part of transportation 

provided in a United States import or export trade.” Id.

§ 1706(a)(4).15 The court concluded that the provision

accurately described Gosselin’s agreements and activity to 

inflate the landed rate, reasoning further “that a false claim 

under the FCA cannot be predicated on price fixing conduct that 

 15 The Shipping Act was amended and recodified in 2006, with 

the result that substantially the same provision now appears at 

46 U.S.C. § 40307(a)(5). The referenced exemption applies by 

its literal terms merely to liability under the antitrust laws, 

but, strictly for purposes of this decision, we assume that it 

may also apply to exempt persons from FCA liability.
46

enjoys a statutory immunity from the antitrust laws.” J.A. 

1137.16

In the criminal proceedings pertaining to the Cartwright 

Channels, during which Gosselin admitted to similar price

fixing, we rejected the same immunity argument. See United 

States v. Gosselin World Wide Moving, N.V., 411 F.3d 502, 509-11

(4th Cir. 2005). Mindful of the canon that exemptions from 

antitrust liability are to be narrowly construed, our friend 

Judge Wilkinson reasoned that because Gosselin’s “collusive 

effort was aimed at the entire through transportation market, 

rather than just the foreign inland segment, we do not think 

that they can claim exemption.” Id. at 510.

Put another way, Gosselin’s price-fixing scheme did not 

inflate in isolation merely the landed rate quoted the freight 

forwarders; it inflated the all-inclusive through rates that the 

freight forwarders were induced to bid (and MTMC was compelled 

to pay) on each of the channels between the United States and 

Germany. The scheme thus concerned more than just the foreign 

 16 In deciding the immunity issue, the district court relied 

in part on the Ninth Circuit’s opinion in United States v. Tucor 

International, Inc., 189 F.3d 834, 836-38 (9th Cir. 1999), 

wherein the court of appeals declared the defendants immune from 

antitrust liability pursuant to § 1706(a)(4). The facts and 

circumstances surrounding Gosselin’s case are dissimilar to

those in Tucor, which, in any event, is not the law of this 

Circuit.
47

inland segments from which the landed rate was derived. That

the effect may have been more drastic in the Covan and 

Cartwright Channels — burdened with the additional encumbrance

of Gosselin’s bid-rigging efforts — is insufficient reason to 

segregate the other channels for purposes of the immunity 

analysis.

Adhering to our decision in the criminal proceedings, the 

district court correctly granted summary judgment against 

Gosselin as to liability on that portion of the FCA claim 

regarding the Cartwright Channels. The court, however, 

incorrectly ruled as a matter of law in Gosselin’s favor on the 

company’s price-fixing conduct affecting the remaining German 

channels, including the Covan Channels. Gosselin could not have 

successfully asserted Shipping Act immunity anew to defeat the 

preclusive effect of our prior judgment, and it should not have 

been suffered to prevail on the same argument with respect to 

the nearly identical circumstances presented by the Covan 

Channels, or to the materially similar circumstances common to 

all the German channels. The jury should have been allowed to 

consider the government’s entire case, but, inasmuch as it was 

not so permitted, the verdict in favor of Gosselin must be 

vacated as infirm. On remand, the district court shall conduct 

further proceedings, not inconsistent with this opinion, as to 

the remainder of the government’s FCA claim.
48

IV.

Pursuant to the foregoing, the judgment of the district 

court is affirmed as to Gosselin’s cross appeal. We also affirm 

the entry of judgment in favor of Bunk, but we reverse and 

remand the court’s entry of no monetary award, instructing it to 

amend the judgment to award $24 million. Lastly, we vacate the 

court’s judgment in favor of the United States so that it may 

conduct further proceedings on what remains of the government’s 

FCA claim and reenter judgment as appropriate.

No. 12-1417 AFFIRMED

No. 12-1369 AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED WITH INSTRUCTIONS

No. 12-1494 VACATED AND REMANDED
49

SHEDD, Circuit Judge, concurring in part and dissenting in part:

I concur in all but Part III-C of the majority opinion. In 

my view, the district court correctly determined that Gosselin’s 

activity was immunized by the Shipping Act, 46 U.S.C. App. 

§ 1706(a)(4), and I would affirm substantially for the reasons 

given by the district court. See United States v. Birkart 

Globistics GMBH & Co., No. 1:02cv1168 (E.D. Va. Aug. 26, 2011).