I have written about Judge Lynn Hughes a couple of times. See my prior posts here and here. It is unfortunate, but some judges, even U.S. District Judges, just do not understand their duties. He has been overruled again. This time, the suit is a large qui tam lawsuit. In the case of Little v. Shell Exploration, No. 14-20156 (5th Cir. 2.23.2015), the Fifth Circuit had previously ruled that Judge Hughes applied an overly broad definition of public disclosure.The higher court found that in using this over broad analysis, ¬†Judge Hughes improperly ruled that plaintiffs (known as “relators” in qui tam actions) could not claim to have brought to light fraud by Shell. The lower court ruled that the fraud had already become part of the public discourse through prior public disclosures. In qui tam actions, the relators must be the first to expose fraud, waste or abuse.

The higher court ruled in that first appeal that Judge Hughes should re-look that analysis in light of a more narrow definition of public disclocures.

On remand following the first appeal, Judge Hughes essentially sat on Shell’s motion for summary judgment for a year and then issued a brief, five page opinion granting the motion, again. On appeal, for the second appeal, the higher court concludes that Judge Hughes did not follow its guidance in its first opinion regarding the False Claims Act and improperly granted summary judgment in favor of Shell. So, on this the second appeal, the Fifth Circuit re-assignes the matter to another judge. In the world of courts and litigation, that is as substantial a knock on a judge as we will see.

Remarkably, the lower court ignored a legal finding by the higher court. It reached the same result it did the first time and on the same grounds as the first time. The Fifth Circuit expressly found that evidence in two categories was not in the public domain. That is, for purposes of the False Claims Act (FCA), that information was not part of the public discussion and the persons bringing the FCA claim should be recognized for bringing to light unlawful activities by Shell. And, in construing a motion for summary judgment, the lower court should have looked at the facts in the light most favorable to Relators (plaintiffs) Little and Arnold. It should have concluded this information was not part of the public domain. Not only did the district court not observe a legal finding by the higher court, it also disregarded summary judgment law. It is quite unusual for any judge to ignore a clear legal finding from a higher court.

The Fifth Circuit noted that the district court’s summary judgment findings were very brief when compared to the lengthy briefing submitted by both sides. Judge Hughes’ order included few citations to the record or to legal precedent. And, he did not follow the clear legal guidance on how to assess whether information is truly in the public domain or not. So, the higher court took the extraordinary remedy of re-assigning the case to a different district judge. After eight years, the case is still not past the point at which public disclosure is recognized as such, or not. The Fifth Circuit is not happy with Judge Hughes. See the decision here.