The False Claims Act, 31 U.S.C. §3730(h), provides that a person who reports fraud, waste and abuse with Federal government funds will be protected from retaliation. The False Claims Act is an old statute, passed soon after the U.S. Civil War to prevent government fraud, waste, and abuse. Gabriel Valdez started working for WellMed in 2021 in San Antonio, Texas. Cynthia Hack worked for WellMed a couple of times since 2018 in Dallas. Mr. Valdez and Ms. Hack both reported fraud and kickbacks to their supervisors at WellMed and to United Health Group. When told about illegal use of Federal funds, one supervisor reportedly put his finger in his ears and said, “lalalalalala, I don’t want to hear it.” Eventually, Ms. Hack reported the abuse to the FBI. Both plaintiffs then started receiving poor performance reviews. Hack was forced out in 2023. In 2022, allegations by a third employee found their way into a San Antonio Express-News report. The third employee and Mr. Valdez were then terminated.

Rule 12(b)(6) Motion to Dismiss

WellMed moved to dismiss, saying the Plaintiffs did not plead facts showing a direct loss to the U.S. government. The employer essentially argued that yes, gifts and favors may have been provided, but the plaintiffs cannot show a direct financial loss to the government. And, they argued that Ms. Hack quit. She was not forced out. But, the court rightly noted that WellMed is confusing the issue. To show retaliation, the two employees need only show they were motivated by a concern for mis-use of Federal funds. At this stage of the lawsuit, the issue is whether they pleaded sufficient facts to show the employees were motivated by a concern for Federal money and whether they suffered reprisal for it. The court found they did indeed plead such facts.

If this were a False Claims Act qui tam lawsuit, then yes, the plaintiffs would have to show actual mis-use of Federal funds. But, the retaliation provision only addresses whether the employee was motivated by an actual concern for possible fraud and suffered reprisal for his report.

The court did not address Defendant’s claim that Hack was not fired. Instead, it pointed to other actions that clearly amounted to reprisal: she was passed over for promotion; and she received poor performance ratings.

The court did agree with the employer, United Health Group, that the two plaintiffs did not show an employment relationship with UHC. The motion to dismiss as to UHC was granted. See the decision in Valdez v. WellMed Management, No. 25-CV-00438 (W.D. Tex. Nov. 24, 2025) here.

Courts are starting to impose punishment of sorts not just on the lawyer who submits a brief with AI hallucinations, but also the non-offending lawyer who failed to point out out the hallucinations. In a recent case in the California Court of Appeals, the court sanctioned a lawyer $10,000 for his AI hallucinations. And it denied an award of attorney’s fees to the non-offending lawyer. The non-offending lawyer had asked for the costs of responding to a frivolous appeal. But, the California Court of Appeals said no. It pointed to coursel’s failure to point our fabricated authorities in the plaintiff’s brief.

Another court in Minnesota found it “troubling” that the opposing counsel did not check his opponent’s citations, which turned out to be fictional. The Minnesota court said courts should not be the only line of defense regarding fabricated citations.

See ABA Bar Journal report here.

The Merit Systems Protection Board has existed for decades. It has long served as a place where Federal workers can find some measure of fairness. The MSPB addresses the question of whether a Federal employee has been fired for a fair reason. The MSPB is not particularly pro-employee. But, it serves a vital purpose for the workers who have been fired in violation of civil service rules. As I mentioned in a prior post, Federal workers are indeed held “accountable.” Project 2025 claimed otherwise. But, such a belief is farcical. See my prior post regarding Project 2025 and Federal workers here.

Early in his term, Pres. Trump fired several immigration judges. These are judges who would normally enjoy some protection from capricious or politically based firings. The administration simply cited as authority for the terminations the President’s Article II power under the Constitution. Two of those judges appealed the terminations to the MSPB: Megan Jackler and Brandon Jaroch. In a remarkable decision, the MSPB actually found that it has the authority to decide whether the MSPB has the authority to decide if Jackler and Baroch were entitled to civil service protection. Civil service protections under 5 U.S.C. §7513 do not prevent terminations. The statute simply requires due process, which in turn then imposes a duty on the Agency to document performance problems. Documenting job performance issues is not an onerous requirement. But, it does generally lead to a more professional, non-political workforce.

For decades, the MSPB had specifically refused to consider the constitutionality of its jurisdiction. Such a question represents a conflict of interest for the MSPB. The issue requires the MSPB to consider whether it ought to exist. The MSPB is made up of Federal employees. So, in essence questioning its jurisdiction over certainn workers undermines its own validity. Yet, suddenly in March,2026, it did indeed question its jurisdiction over a major group of Federal employees.

According to the New York Times, the acting chair of the MSPB, Henry Kerner, was called to a meeting with Trump administration officials. According to the Times report, those officials hinted that the MSPB should rule in favor of the administration regarding the two fired immigration judges, Jackler and Baroch. That meeting occurred in November, 2025, just a few months prior to the MSPB’s March, 2026 opinion. In attendance at that meeting with Chairman Kerner was James Sherk. Mr. Sherk has been preaching the false gospel that Federal employees are hard to fire since 2014. See the New York Times report here.

Mr. Kerner was one of two authors of the MSPB decision regarding Jackler and Baroch. If he did indeed meet with a representative of Department off Labor and a person from the White House Counsel’s Office and listened as they discussed a pending case, that would be a clear breach of the ethical rules all lawyers are bound by. Even simply meeting with them suggests the appearance of impropriety.

MSPB Judges not Protected

The MSPB decision dated March 20, 2026 found that immigration judges now qualify as “inferior officers,” such that the MSPB has sufficient authority that Congress cannot limit their removal. The MSPB ruled that simply based on the fact that immigration judges address an area of “significant consequence” for the country, involving foreign relations, the judges are inferior officers not subject to protections. But, as the Lawfare blog points out, this is not a factor that had ever played a role in the prior caselaw. In the few cases on this subject, the concern was the nature of the authority and its framework, not the subject matter.

The problem for this decision is that if it stands, hundreds of senior Federal officials and administrative judges will become subject to overt political pressure. Much of our non-partisan Federal workforce will become partisan. Administrative judges, career attorneys, scientists, IRS auditors would all become subject to the caprice of each changing administration. This decision has been appealed to the Federal Court of Appeals in Washington, D.C. That court has granted a rare en banc review. En banc means all the judges on the court will hear the appeal, not just a three judge panel.

See the Lawfare blog post here.

See the MSPB decision in Jackler and Baroch v. Dept. of Justice, No.. CF-0752-26-0069-1-1 (March 20, 2026) here.

I talked about this case last September. See prior blog post here. Humphrey’s Executor v. United States, 295 U.S. 602 (1935) was decided 90 years ago. It stands for the proposition that the board members of some Federal agencies can be removed only for cause. The Humphrey’s decision specifically found that some governmental functions should be beyond politics. Pointing to the legislative history behind the act that created the Federal Trade Commission, the 1935 Supreme Court said:

“The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts “appointed by law and informed by experience.”

Humphrey’s, at 624. The duties of the FTC have not changed appreciably since 1935. Yet, the 2026 U.S. Supreme Court chose to overrule Humphrey’s and allow Pres. Trump to fire two members of the FTC board. In Trump v. Slaughter, No. 25-332 (June 29, 2026), the Supreme Court claimed the duties of the FTC have changed, but offered no specific examples. It claimed various decisions of the Supreme Court have noted since 1935 that the duties of the FTC are largely executive and not quasi-judicial or quasi-legislative. For example, the Trump v. Slaughter decision asserted that the Supreme Court noted in a 1983 decision that when an agency exercises “legislatively delegated authority” to regulate private conduct, it exercises “[e]xecutive power.” It cited the case of INS v. Chadha, 462 U.S. 919, 953 n. 16 (1983). But, that quote does not appear in note 16 or anywhere else, at least not as it is stated. Such a clear test ought to be stated clearly. But, that test as stated, does not appear in the Chadha decision.

Removed from Politics

As the dissent points out, quasi-independent agencies have existed since soon after the founding of this country. The concept that the heads of some agencies should be immune from capricious termination by the President and that some enforcement functions should be removed from politics is not new. The dissent cited examples throughout the 19th century. It also noted the many occasions when Humphrey’s Executor was affirmed by the Supreme Court. Indeed, removal for cause is just not a major obstacle to Presidential power. It is not hard to document actual job performance problems.

Indeed, in another case decided the same day, the Supreme Court affirmed that the President may not fire a member of the board for the Federal Reserve. As it stands, these formerly semi-independent agencies, the Equal Employment Opportunity Commission, the Federal Trade Commission, the National Labor Relations Board, the Merit Systems Protection Board, and others, have always seen changes when a new President assumes power. Now, with the decision in Trump v. Slaughter, those changes will swing even more broadly. The current Supreme Court has shown a remarkable disdain for precedent. I expect these changes will not last and that Congress will find a way to get around these decisions. Most employees and perhaps all employers will find major changes every time a new President is sworn into office to be very frustrating.

See the decision in Trump v. Slaughter, No. 25-332 (June 29, 2026) here.

A former Bexar County deputy settled his religious discrimination claim against Bexar County for $300,000. Luis R. Borges applied to be a deputy at the Bexar County jail. When a deputy came to his house as part of a routine check, the deputy found at Mr. Borges’ home a Santa Muerte altar. Mr. Borges had been offered a position at that point. But, the offer was rescinded several days after the discovery. Mr. Borges’ wife worships Santa Muerte. Santa Muerte (Saint Death) is worshiped by persons who seek his protection. Many drug cartel members worship Santa Muerte. Borges was told that the Bexar County Sheriff Javier Salazar himself made the decision to rescind the job offer.

Mr. Borges is a practicing Roman Catholic, but his wife prays to Santa Muerte. Mr. Borges filed a complaint of religious discrimination with the Equal Employment Opportunity Commission. The EEOC found that he was indeed discriminated against on the basis of his association with his wife’s religion. Borges then filed suit not under Title VII, but under 42 U.S.C. §1983. It was filed under Borges v. Bexar County, Texas, No. 24-CV-1233 (W.D. Tex.).

Sec. 1983 is a post-Civil war statute that prohibits discrimination. It also incorporates First Amendment protections in regard to acts committed by state and local governments. Unlike Title VII, there is no cap on the amount of damages that can be awarded under Sec. 1983.

Official Policy

Apparently as part of the normal discovery process, Sheriff Salazar conceded that some who worship Saint Death are not members of a drug cartel. The Sheriff’s office moved for dismissal, arguing that Title VII provided the exclusive remedy for religious discrimination. But, the court made short work of that argument. Sec. 1983 is the vehicle for protection under the First and Fourteenth Amendments. The First Amendment certainly protects a person from discrimination based on his/her religion.

The Defendant’s other argument was the normal governmental immunity defense. But, the court found there was sufficient evidence that Sheriff Salazar and the Bexar County Sheriff’s office had a policy of not hiring persons associated with the Santa Muerte religion. The Bexar County Sheriff’s Office recruiter flat told Mr. Borges that Sheriff Salazar himself had decided to rescind the job offer based on his wife’s religion.

See San Antonio Express-News report here.

It occurs often enough: a key employee, a CEO contracts a serious illness and takes extended leave. The CEO returns to work and then takes intermittent leave for a year or longer. Then the CEO is fired. This is what happened to Benjamin Reed, the CEO for the the Floresville Economic Development Corporation. Mr. Reed filed suit after he was fired. In the matter of Reed v. Floresville EDC, No. SA-24-CV-00701, 2026 WL 75342 (W.D. Tex. March 16, 2026), Judge Pulliam denied the employer’s motion for summary judgment.

In yet another case of poor employer timing, Mr. Reed tried to return to work from FMLA leave on Sept. 18, 2023. FEDC said no, he had stayed beyond his allowed leave. Reed said, no, not true. He said his FMLA paperwork was in order. Then three days later, Reed was summoned to a Board meeting of the FEDC and fired. We can view that as an excellent example of how not to fire an employee, especially one with very positive reviews and a prior raise. In any event, the employer moved for summary judgment on Reed’s ADA claim.

Inadmissible Evidence

In its motion, the employer relied on minutes from that Sept. 21 Board meeting as evidence of poor performance. Attached to those minutes were documents entitled “Credit Card Expense Observations,” “Internal Audit Observations,” and others. But, none of these documents were signed and none were authenticated. Lacking authentication means no witness testified these were accurate copies of the original documents, and no one testified that the original documents themselves were accurate copies. As such, they were not admissible in that form. That sort of evidence can still be used regarding a motion for summary judgment, but only if the proponent explains how they would be admissible at trial. Motions for summary judgment are intended to replicate, more or less, what would occur at trial. But, FEDC did not explain how such evidence would be admitted at trial. The plaintiff objected to the evidence, but apparently the employer still did not explain how those documents would be admitted at trial.

Indeed, the decision does not state this, but the Judge must have wondered if the CEO was abusing his company credit card, is that something the employer would object to? Would they simply caution him to do better? Pointing to a perceived performance issue is the beginning of the discussion, not the end.

Lacking evidence to support its position that Mr. Reed was fired for performance issues, of course, the employer lost its motion for summary judgment. It hurt the employer’s case that it also failed to follow its own handbook. Handbooks are not binding on the employer. But, they do serve as a standard. If other employees accused of malfeasance are investigated and allowed to respond to the allegations, then why was not the person with a disability not allowed to do so? That is classic disparate treatment. The same analysis applies when another employee is accused of the same violations, but is not fired. That would be another instance of disparate treatment. The employer apparently could not explain why some employees were treated in accordance with the company handbook, but not the employee with a disability.

Criminal law is challenging. The lawyer must fight with the District Attorney, and sometimes with his own client. Everything reaches a climax with the sentencing hearing. That is when a criminal defendant finds out the bad news. In Houston, John Petruzzi was appearing in state district court for a sentencing hearing. The defendant, Jaquarius Lewis had pleaded guilty to a plea bargain in January. Now, in April, 2026, he would find out the Judge’s decision would be. The plea bargain provided that Mr. Lewis would be sentenced to some prison time longer than five years, but equal to or less than 50 years. So, the Judge had a time period to choose from.

The Judge sided with the prosecutor and sentenced Lewis to 50 years – the maximum allowed under the plea agreement. Immediately, Mr. Lewis punched his lawyer in the face,. As the 65 year old lawyer fell back into a chair, he hit a counter and passed out. In January, Mr. Lewis had filed his own motion seeking the appointment of a new lawyer. Mr. Petruzzi was court-appointed. So, Mr. Petruzzi was not necessarily Lewis’ choice to be attorney. Lawyer Petruzzi has practiced law since 1980. He says this was the first time he had ever been punched.

Shortly after the sentencing hearing, Mr. Lewis was charged with intentionally causing bodily injury to Mr. Petruzzi. See ABA Bar Journal report here for more information.

I was in court once when the opposite happened. The criminal defendant was so happy with his sentence that he immediately grabbed his female attorney, who was quite attractive, and kissed her on the lips. She told me later she was completely surprised.

The Texas Fourth Court of Appeals has affirmed a jury award in favor of a Houston attorney, Michelle Acosta. Ms. Acosta accused an opposing attorney, Allan Manka, of extending his arm around Ms. Acosta and groping her bottom. They were opposing attorneys in a family law matter in the Wilson County Courthouse in Floresville, Texas. Acosta sued Mr. Manka for assaulting her. A jury awarded $5 million. The two lawyers had never met before that day.

Unprofessional Touching

During some down time in the courthouse, Mr. Acosta told Ms. Acosta and the father of Acosta’s client that he liked to make the opposing parties uncomfortable by putting his arm around his female clients to make the husband uncomfortable. Security camera footage showed Mr. Manka putting his arm around Ms. Acosta twice and sliding his arm around her waist. As the two clients returned from their own conference, the spouses told their respective lawyers they had worked things out. Ms. Acosta then extended her hand to shake hands with Mr. Manka. Manka did not take her hand. Instead, he leaned into her personal space. Acosta said he then grabbed her buttocks and squeezed them. The camera footage shows Acosta then slapped his chest and Acosta walked away.

Assault

Acosta sued Manka for unwanted touching and intentional infliction of emotional distress. Manka counter-sued for defamation, business disparagement and tortious interference with a contract. Ms. Acosta moved to dismiss the counter-claims, which motion was granted. He re-filed his allegations and lost again.

In 2024, the action was tried to a Bexar County jury. The jury found in favor of Ms. Acosta. The jury awarded her $3 million in past mental anguish damages and $2 million in future mental anguish damages.

Manka appealed, saying the evidence did not support those high damages. Mr. Manka said he had practiced law for 50 years. He denied he grabbed Ms. Acosta’s bottom. He said he simply slipped his arm around her and that he brushed her hair off her shoulder. Mr. Manka said he did those things deliberately to make her uncomfortable.

Ms. Acosta’s client, Keith, who was also Ms. Acosta’s brother, said Manka walked away from Acosta laughing. Ms. Acosta’s and Keith’s father, Hipolito, was also present in the Wilson County courthouse that day. He said he was in law enforcement for many years and had never seen anything like that in a courthouse. Ms. Acosta that she suffered sleeplessness and panic attacks after the incident. She said Manna’s hand going around her waist was similar to a knife going into her neck. Ms. Acosta had seen counselors and was on medication for depression and anxiety.

The appellate panel of three judges, including two female judges, found this was in fact sufficient evidence to support the verdict. All lawyers engage in gamesmanship of some sort, even when seemingly at ease waiting in the hallway of a busy courthouse. But, in my 30+ years of practice, I have never seen a male lawyer do the things Mr. Manka did in that Wilson County courthouse. Mr. Manka could have quietly settled this matter. But, instead, he chose to submit his own counter-suit. And then appeal a very large verdict.

See the Fourth Court’s decision in Manka v. Acosta, No. 04-25-00089-CV (Tex.App. San Antonio May 13, 2026) here. See the ABA Bar Journal report here.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Carlos Saenz had a huge laugh and a booming voice. He laughed a lot.  

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. See a tribute to 1SGT Saenz at the Arlington cemetery website here.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.

Like many of us, PVT Clevenger returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, let us recall the fallen – including the Confederate fallen.

To mark Memorial Day, let us recall two area San Antonio heroes. They were both friends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st Civil Affairs Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.