United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2016 Decided February 17, 2017

No. 15-7144

UNITED STATES, EX REL. JULIE MCBRIDE,

AND

JULIE MCBRIDE,

APPELLANT

LINDA WARREN AND DENIS MAYER,

APPELLEES

v.

HALLIBURTON COMPANY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-00828)

Victor Aronoff Kubli argued the cause and filed the briefs 

for appellant.

Joshua S. Johnson argued the cause for appellees 

Halliburton Company, et al. With him on the brief were John 

P. Elwood, Tirzah S. Lollar, and John M. Faust. Craig D. 

Margolis entered an appearance.
2

Before: KAVANAUGH and WILKINS, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Relator-Appellant Julie McBride 

(“McBride”) appeals the District Court’s grant of summary 

judgment in favor of Defendants-Appellees Halliburton 

Company; Kellogg Brown & Root, Inc.; Service Employees 

International Inc.; Kellogg Brown & Root Services, Inc.; and 

KBR Technical Services, Inc. (collectively, “KBR”). McBride 

asserted violations of the False Claims Act (“FCA”), 31 U.S.C. 

§ 3729(a), based on KBR’s alleged inflation of “headcount”

data – which purported to track how many U.S. troops

frequented KBR’s recreation centers at certain camps in Iraq –

from July 2004 to March 2005. The District Court granted 

summary judgment for KBR, concluding that McBride failed 

to offer evidence that any misrepresentation regarding 

headcount data (if one existed) was material to the 

Government’s decision to pay KBR. We agree; and, taking 

into account the Supreme Court’s intervening decision in 

Universal Health Services, Inc. v. United States ex rel. 

Escobar, 136 S. Ct. 1989 (2016), we affirm. 

I.

A.

Under the Logistics Civil Augmentation Program 

(“LOGCAP”), the U.S. Army contracts with private companies 

to provide a wide range of logistical services. In 2001, the 

Army awarded KBR the third contract issued under the 

LOGCAP program, known as “LOGCAP III.”1 LOGCAP III

 1 We refer to Appellees collectively but note that Kellogg Brown & 

Root Services, Inc. (“KBRSI”) is the only Appellee that was a party 
3

did not specify the particular work to be performed by KBR.

Instead, KBR’s contractual responsibilities were set forth in 

individual “Task Orders.”

The Task Orders used a cost-plus-award-fee structure, see 

48 C.F.R. § 16.405-2, meaning KBR received reimbursement 

for the actual costs of the services provided,2 as well as a “base 

fee” of 1% of the pre-determined estimated cost of performing 

the services under the Task Order. At the Government’s 

discretion, KBR could also earn an “award fee” of up to 2% of 

the estimated cost based upon better than average performance.

Shortly after the U.S. military’s March 2003 invasion of

Iraq, KBR began providing services under Task Order 59, 

which was effective from June 2003 to May 2005. Task Order 

59 required KBR to provide a wide range of support services 

for U.S. troops, such as camp construction, power generation, 

dining facilities, potable and non-potable water services, fire 

protection, laundry, and – relevant here – morale, welfare, and 

recreation (“MWR”) services. KBR performed MWR services 

by maintaining recreation centers where U.S. troops could 

exercise, play games, watch television, and use the internet, 

among other things. MWR services were a relatively small part 

of KBR’s overall effort, representing about 1.5% of total costs 

incurred under Task Order 59.

From November 2004 to March 2005, McBride worked 

for KBR as one of ten employees at the MWR facilities at 

 

to the LOGCAP III contract, and the only one that submitted bills to 

the Government under that contract. 

2 KBR was entitled to bill for its allowable costs – i.e., costs that were 

reasonable, allocable to its contract, subject to proper accounting, 

and in compliance with contractual terms and any limitations set 

forth in 48 C.F.R. subpart 31.2. See 48 C.F.R. §§ 31.201-2 to 

31.201-4.
4

Camp Fallujah (also known as Camp B-3) in Iraq. McBride’s 

duties included ensuring that soldiers who entered the MWR 

facilities signed in to use them. According to McBride, during 

the night shift she had the additional responsibility of 

compiling “headcount” data which purported to reflect how 

many troops had used the facilities each day. McBride 

assembled this data in “Situation Reports” or “Sit Reps,” and 

distributed them to KBR personnel.

This case centers on McBride’s allegation that KBR 

inflated the headcount data, reflecting inaccurate headcount 

numbers for MWR facilities at Camp Fallujah and Camp Ar 

Ramadi (also known as Camp B-4) from July 2004 to March 

2005. McBride alleges various ways in which the headcount 

data was inflated, such as counting soldiers each time they 

entered different parts of the facilities. McBride also alleges 

that KBR destroyed sign-in sheets to conceal the falsity of the 

headcount data, and that KBR stopped inflating headcounts 

after she reported the practice to her supervisors. 

Although McBride has not consistently articulated a 

precise theory, her basic contention is that KBR failed to 

disclose violations of its obligations to maintain accurate data 

to support its costs, and as such, rendered its claims impliedly 

false. 

B. 

McBride filed this case under seal in April 2005. The 

District Court unsealed it in July 2006 after the Government 

declined to intervene. In October 2006, before KBR was 

served with the Complaint, the Defense Contract Audit Agency 

(“DCAA”) investigated McBride’s allegations, issuing written 

questions to KBR and visiting Camp B-3 to review records and 

interview KBR’s personnel. The DCAA did not issue any 
5

formal findings, but neither DCAA nor any other Government 

agency disallowed or challenged any of the amounts KBR had 

billed for MWR services under Task Order 59. 

After the District Court unsealed the case, KBR moved to 

dismiss. The District Court permitted two of McBride’s claims 

to go forward to discovery, including one based on her core 

assertion that KBR had used false MWR headcount tallies to 

overbill the Government. KBR then moved for summary 

judgment, arguing that the contract documents established that 

they did not charge the Government for MWR services on a 

“per head” basis. The District Court denied that motion 

without prejudice pending discovery. 

For the next three years, KBR produced over two million 

pages of documents, conducted Rule 30(b)(6) depositions of 

the Army, and deposed McBride. McBride took no fact 

depositions. Discovery neared a close and the parties became 

embroiled in a dispute as McBride attempted to expand her 

claims to cover a broader time period and additional camps in 

Iraq. KBR moved for a protective order to limit any remaining 

discovery, and the District Court provided McBride with the 

opportunity to file a fourth amended complaint to articulate the 

scope of her claims as she saw them. McBride declined those 

offers because, in counsel’s view, there was “no legal need to 

do so.” J.A. 270. The District Court granted KBR’s motion 

for a protective order; and discovery closed after McBride took 

KBR’s Rule 30(b)(6) deposition in February 2013. 

KBR then filed a motion for summary judgment. In a 

Memorandum-Decision and Order dated May 27, 2014, the 

District Court granted in part and denied in part KBR’s motion 

for summary judgment. The District Court denied KBR’s 

motion with regard to McBride’s claims insofar as they were 

based on her allegations that KBR inflated the headcount of 
6

patrons using MWR facilities at Camps B-3 and B-4 from July 

2004 to March 2005. The very next day, the District Court 

permitted KBR to file a motion for reconsideration, instructing 

McBride to provide it with a proffer of evidence.

On December 10, 2014, the District Court granted KBR’s 

motion for reconsideration, and granted its motion for 

summary judgment. The District Court expressed doubt that 

there was anything “unreasonable or inherently false or 

fraudulent about [KBR’s alleged] method of accounting for the 

usage of . . . different [MWR] services,” but in any event 

concluded that KBR was entitled to summary judgment 

because McBride had presented no evidence that the alleged 

headcount practices were material to the Government’s

payment decisions. Mem. Decision & Order, No. 05-cv-828,

at 16-18, 16 n.3 (D.D.C. Dec. 10, 2014), J.A. 416-18.

II.

We review the District Court’s grant of summary 

judgment de novo. Holcomb v. Powell, 433 F.3d 889, 895 

(D.C. Cir. 2006). Summary judgment is appropriate only if 

“there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a); Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 

2016). “[T]he mere existence of some alleged factual dispute 

between the parties” is not enough to defeat summary 

judgment; “the requirement is that there be no genuine issue of 

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48 (1986). 
7

III.

McBride brings two claims under the FCA, invoking 

Sections 3729(a)(1) and 3729(a)(2).3 Section 3729(a)(1) 

creates liability for any person who “knowingly presents, or 

causes to be presented, to an officer or employee of the United 

States Government or a member of the Armed Forces of the 

United States a false or fraudulent claim for payment or 

approval.” 31 U.S.C. § 3729(a)(1) (2006). Section 3729(a)(2) 

creates a cause of action against anyone who “knowingly 

makes, uses, or causes to be made or used, a false record or 

statement to get a false or fraudulent claim paid or approved by 

the Government.” Id. § 3729(a)(2). 

Both provisions – subsections (a)(1) and (a)(2) – require a

“false or fraudulent claim” for payment; however, the statute 

does not define what makes a claim “false” or “fraudulent.” In 

United States v. Science Applications International Corp.

(SAIC), 626 F.3d 1257 (D.C. Cir. 2010), we observed that, “[i]n 

the paradigmatic case, a claim is false because it ‘involves an 

incorrect description of goods or services provided or a request 

for reimbursement for goods or services never provided.’” Id.

at 1266 (quoting Mikes v. Straus, 274 F.3d 687, 697 (2d Cir. 

2001)). Alternatively, a plaintiff may proceed under the socalled “certification” theory of liability, which forms the basis 

for McBride’s claims in this case. Under this theory, the falsity 

of a claim for payment “rests on a false representation of 

compliance with an applicable federal statute, federal 

regulation, or contractual term.” Id. In SAIC, we explained 

that courts may “infer implied certifications from silence” 

 3 This opinion refers only to the FCA’s pre-2009 text. Congress 

amended the FCA by enacting the Fraud Enforcement and Recovery 

Act of 2009 (“FERA”), Pub. L. No. 111-21, 123 Stat. 1617. The 

parties agree that the post-FERA version of the statute does not apply 

retroactively to McBride’s claims.
8

under certain circumstances, id., but in order to establish 

liability the plaintiff must prove that “compliance with the legal 

requirement in question is material to the government’s 

decision to pay,” id. at 1271 (emphasis added). We committed 

to “enforcing this [materiality] requirement rigorously” to 

“ensure that government contractors will not face onerous and 

unforeseen FCA liability as the result of noncompliance with 

any of potentially hundreds of legal requirements established 

by contract.” Id. (internal quotation marks omitted). 

After McBride filed her opening brief, and before KBR 

responded, the Supreme Court issued its decision in Universal 

Health Services, Inc. v. United States ex rel. Escobar, 136 S. 

Ct. 1989 (2016), which endorsed an “implied false 

certification” theory under certain circumstances. Specifically, 

the Court held that “[w]hen . . . a defendant makes 

representations in submitting a claim but omits its violations of 

statutory, regulatory, or contractual requirements, those 

omissions can be a basis for liability if they render the 

defendant’s representations misleading with respect to the 

goods or services provided.”4 Id. at 1999. The Court made 

clear that courts should continue to police expansive implied 

certification theories “through strict enforcement of the Act’s 

materiality and scienter requirements.” Id. at 2002 (quoting 

 4 The Supreme Court left open the question of whether a claim that 

“merely demand[s] payment,” as opposed to one that makes specific 

representations about the goods or services provided, can count as 

the requisite misleading representation. Universal Health, 136 S. Ct. 

at 2000; see also id. (claims with treatment- and specialty-specific 

payment codes made representations that healthcare provider had 

provided particular types of therapy by licensed professionals, and 

were “clearly misleading” in context where provider failed to 

disclose “many violations of basic staff and licensing requirements 

for mental health facilities”). We need not grapple with that question 

here because the lack of materiality is clearly dispositive.
9

SAIC, 626 F.3d at 1270). In particular, “a misrepresentation 

about compliance with a statutory, regulatory, or contractual

requirement must be material to the Government’s payment 

decision in order to be actionable under the False Claims Act.”5

 

Id.

The Supreme Court offered “clarif[ication]” as to how the 

“familiar and rigorous” materiality standard should be 

enforced, id. at 2002, 2004 n.6, including that courts should

look beyond the express designation of a requirement as a 

condition of payment to find it material, id. at 2003 (“[T]he 

Government’s decision to expressly identify a provision as a 

condition of payment is relevant, but not automatically 

dispositive.”). Additionally, courts need not opine in the 

abstract when the record offers insight into the Government’s 

actual payment decisions. See id. at 2002 (“Under any 

understanding of the concept, materiality ‘look[s] to the effect 

on the likely or actual behavior of the recipient of the alleged 

misrepresentation.’” (alteration in original) (emphasis added)

(quoting 26 RICHARD A. LORD, WILLISTON ON 

CONTRACTS § 69:12 (4th ed. 2003))). The Supreme Court 

made clear the materiality standard is “demanding,” id. at 2003, 

and not “too fact intensive” to resolve on a motion for summary 

judgment, id. at 2004 n.6. 

 5 In Universal Health, although some of the claims were submitted 

prior to FERA’s enactment in 2009, the Supreme Court considered 

the post-FERA version of the FCA. The defendant did not argue, 

and thus the Court “d[id] not consider, whether pre-2009 conduct 

should be treated differently.” Universal Health, 136 S. Ct. at 1998 

n.1. Here, we assume – as the parties have done – that Universal 

Health’s materiality standard applies to the instant dispute. We need 

not decide whether (or how) that standard may differ from the one 

we used prior to Universal Health.
10

IV.

Turning to McBride’s claims, to successfully oppose 

summary judgment, McBride must show that a reasonable 

factfinder, drawing all justifiable inferences from the evidence 

in her favor, could find that KBR violated a contractual or 

regulatory requirement that was material to the Government’s 

decision to pay. See United States ex rel. Folliard v. Gov’t 

Acquisitions, Inc., 764 F.3d 19, 29 (D.C. Cir. 2014). In doing 

so, she “cannot rely on the allegations of her own 

complaint . . . , but must substantiate them with evidence.”

Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 

2015).

We begin by isolating the purported violation of a 

contractual, regulatory, or other legal requirement that KBR 

allegedly failed to disclose. McBride stakes her claims on

KBR’s maintenance of false headcount data. Neither 

LOGCAP III nor Task Order 59 specifically required MWR 

headcount data to be maintained by KBR, much less produced 

to the Government. It appears KBR voluntarily undertook to 

track this data and, at times, provided it to the Government.

6

Instead, McBride finds her foothold in the Federal 

Acquisition Regulation (“FAR”) which provides that the costs 

charged to the Government must be “[r]easonable[].” 48 

C.F.R. § 31.201-2(a)(1). “A cost is reasonable if, in its nature 

and amount, it does not exceed that which would be incurred 

by a prudent person in the conduct of competitive business.” 

Id. § 31.201-3(a). “What is reasonable depends upon a variety 

of considerations and circumstances, including[,] [inter alia] –

 6 For example, KBR provided the Government with Logistic Reports 

(“Log Reps”), which included aggregate MWR headcount data 

across several camps in Iraq.
11

[w]hether it is the type of cost generally recognized as ordinary 

and necessary for the conduct of the contractor’s business or 

the contract performance.” Id. § 31.201-3(b).

The FAR also holds KBR “responsible . . . for maintaining 

records, including supporting documentation, adequate to 

demonstrate that costs claimed have been incurred, are 

allocable to the contract, and comply with applicable cost 

principles. . . .” Id. § 31.201-2(d). The Government is entitled 

to disallow costs that are determined to be unreasonable or 

unsubstantiated by supporting documentation. Id. § 31.201-2. 

McBride refers to these and other FAR requirements as 

relevant to her claims, and in doing so, appears to shift between 

imprecise theories about unreasonable costs and faulty 

supporting documentation.7

Specifically, McBride alludes to the possibility that KBR 

may have used inflated headcounts to justify excessive staffing 

levels at its MWR facilities, and that as a result, personnel costs

were unreasonable; but McBride does not actually set out to 

prove that staffing was excessive or costs were 

“unreasonable.”8 Instead, her primary contention is that KBR 

deprived the Government of the opportunity to examine 

 7 McBride performed similar maneuvers in the District Court, where 

she initially obfuscated her way through summary judgment before 

the District Court reconsidered its decision. See Mem. Decision & 

Order, No. 05-cv-828, at 10 (D.D.C. Dec. 10, 2014), J.A. 410 (“One 

of the reasons that the Court granted Defendants’ motion for 

reconsideration is that it has been difficult for the Court to get Relator 

McBride’s counsel to articulate the nature of his client’s claims in a 

consistent and precise manner.”). 8 To be sure, McBride also does not contend there were any falsities 

in KBR’s payment invoices, and acknowledges that all costs claimed 

were costs actually incurred for hours that personnel actually 

worked.
12

records in order to determine the reasonableness, or 

allowability of the costs. The assumption, of course, is that 

accurate headcount data was relevant to determining the 

reasonableness of costs. However, she offers no evidence in 

support of that proposition other than her own say-so, which is 

clearly insufficient. See Grimes, 794 F.3d at 94 (“[I]t is well 

established that [a plaintiff] cannot rely on the allegations of 

her own complaint in response to a summary judgment motion, 

but must substantiate them with evidence.”).

Indeed, when pressed by the District Court on this issue, 

McBride’s counsel disclaimed the need for evidence because 

he was “resting on the proposition that what it takes to service 

five people is a lot less than what it takes to service 500 

people.” J.A. 391; see also McBride Opening Br. 22 n.6 

(reiterating same). Although there is some intuitive attraction 

to counsel’s logic, it is irrelevant here. To the contrary, KBR 

proffered evidence that when it first began work under Task 

Order 59, it had no headcount data to extrapolate from for 

staffing decisions because none yet existed; as such, in 

accordance with a military manual governing a prior conflict 

area, KBR determined staffing based on camp population, not 

based on headcounts or actual usage. The Rule 30(b)(6) 

witnesses designated by the Army Sustainment Command 

(KBR’s contractual counterparty) testified that staffing 

determinations were further impacted by factors such as the 

types of services available – e.g., a facility with a gym has more 

staff than the same facility without a gym – as well as the hours 

the facility is open. And although KBR’s precise motive 

behind tracking headcounts remains somewhat of a mystery,

the Army witnesses also testified that such headcount data

(false or not) had no bearing on costs billed to the Government, 

and that there was no indication the data affected award fee

decisions.
13

Absent any connection between headcounts and cost

determinations, it is difficult to imagine how the maintenance 

of false headcounts would be relevant, much less material, to 

the Government’s decision to pay KBR.9 Nevertheless, 

McBride persists, claiming as “dispositive” an Administrative 

Contracting Officer’s (ACO) statement in a declaration that he 

“might” have investigated further had he known false 

headcounts were being maintained, and that such an 

investigation “might” have resulted in some charged costs 

being disallowed. The ACO’s speculative statement could be 

true of the maintenance of any kind of false data; it tells us 

nothing special about headcounts. At most, the statement 

amounts to the far-too-attenuated supposition that the 

Government might have had the “option to decline to pay.” See 

Universal Health, 136 S. Ct. at 2003 (“Nor is it sufficient for a 

finding of materiality that the Government would have the 

option to decline to pay if it knew of the defendant’s 

noncompliance.”). Given the speculative and generic nature of 

the ACO’s statement, and the “rigorous” and “demanding” 

materiality standard that must be met, id. at 2002-03, 

McBride’s evidence will not suffice to defeat summary 

judgment.

Moreover, we have the benefit of hindsight and should not 

ignore what actually occurred: the DCAA investigated

McBride’s allegations and did not disallow any charged costs.

In fact, KBR continued to receive an award fee for exceptional 

performance under Task Order 59 even after the Government 

learned of the allegations. This is “very strong evidence” that 

the requirements allegedly violated by the maintenance of 

inflated headcounts are not material. See id. at 2003 (“[I]f the 

 9 Indeed, absent such a connection, it is doubtful that McBride can 

show a violation of a regulatory requirement occurred in the first 

place (i.e., that headcounts were required to be maintained as 

supporting documentation for costs). 
14

Government pays a particular claim in full despite its actual 

knowledge that certain requirements were violated, that is very 

strong evidence that those requirements are not material.”).

V.

Finally, in a few sentences without citing any supportive 

authority, McBride asserts that the District Court “erred in 

requiring [her] to seek leave to file a fourth amended 

complaint” to cover additional camps and time periods.

McBride Opening Br. at 28. In reality, the District Court

appropriately determined McBride needed to amend her 

Complaint – and state her claims with particularity – before 

expanding her theory in the final stretch of discovery. The 

Court afforded McBride multiple opportunities to do so, and 

she declined. We have no occasion to review the regrets of her 

counsel. 

VI.

For the foregoing reasons, we affirm the grant of summary 

judgment by the District Court.

So ordered.