MDGA overturns EPA refusal to permit employee to testify in FCA case

by bvernia | August 28th, 2009

In an August 21 order, the District Court in Athens, Georgia, granted the relators’ motion to compel the testimony of an EPA employee in a contentious False Claims Act case.

In their suit, the relators allege that researchers at the University of Georgia made false statements in a grant application to the EPA, and that several EPA employees assisted the researchers in their fraud by themselves making misrepresentations. The unusual case arises from the relators’ allegations that their farms were contaminated by the application of sewage sludge. They sought the testimony of an EPA employee who, at the time, was the EPA regional biosolids coordinator. The relators initially served a deposition subpoena, but withdrew this at the agency’s request, and asked for permission, pursuant to the EPA’s so-called Touhy regulations. The EPA refused, claiming that the employee’s testimony was not an appropriate use of the EPA’s time and resources, and was not clearly in the agency’s interest. The relators then moved to compel her to testify.

The Court first dispensed with the agency’s argument that the relators could not move to compel the deposition because no subpoena was pending, and acknowledged the high burden of overturning an administrative decision under the arbitrary and capricious standard of review. Judge Clay D. Land then found that the employee likely possessed information relevant to the relators’ claims, and that the EPA’s explanation of its decision – that its employee possessed no relevant evidence – was counter to ther evidence before the agency. He granted the motion to compel the employee’s testimony.

Although it is not uncommon for federal agencies to be apathetic or even antagonistic about FCA suits involving their programs, this case is unusual in the direct antagonism between the relators and the agency: they alleged EPA employee collusion in the defendants’ alleged fraud, and argued in this motion that one reason the testimony was in the EPA’s interest was to help it “uncover any improper conduct by EPA employees” with regard to the program which they claim harmed their property.

F. Edwin Hallman, Richard Wingate, and Zachary Wilson of Marietta, Georgia’s Hallman + Wingate LLC represent the relators. AUSA Randy Aderhold is handling the case for the US.

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