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United States v. Rainey

United States Court of Appeals, Fifth Circuit

June 27, 2014

DAVID RAINEY, Defendant-Appellee

Page 235

Appeal from the United States District Court for the Eastern District of Louisiana.

For United States of America, Plaintiff - Appellant: Christopher Jackson Smith, Trial Attorney, Stephan Edward Oestreicher Jr., Sangita Katikineni Rao, Rohan Arun Virginkar, Trial Attorney, U.S. Department of Justice, Criminal Division, Washington, DC; Jeffrey Goldberg, U.S. Department of Justice, Criminal Division - Deepwater Horizon Task Force, New Orleans, LA; Leo Rin Tsao, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Washington, DC.

For David Rainey, Defendant - Appellee: Brian Matthew Heberlig, Esq., Scott P. Armstrong, Bruce C. Bishop, Jessica Lynne Urban, Esq., Reid H. Weingarten, Esq., Steptoe & Johnson, L.L.P., Washington, DC; Michael W. Magner, Jones Walker LLP, New Orleans, LA.

For Bipartisan Legal Advisory Group of The U.S. House of Representatives, Amicus Curiae: Mary Beth Walker, U.S. House of Representatives, Office of the General Counsel, Washington, DC.

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.


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HIGGINSON, Circuit Judge:

Distilled, this appeal raises a pure question of statutory interpretation. Congress criminalizes obstructing " the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress." 18 U.S.C. § 1505. The defendant contends, and the district court agreed, that he cannot be prosecuted under § 1505 for obstructing a congressional-subcommittee investigation because a congressional subcommittee is not " any committee of either House." We interpret the statutory class of " any committee of either House," however, to include congressional subcommittees. We VACATE accordingly.


This criminal prosecution stems from BP plc's (" BP" ) response to the explosion on the Deepwater Horizon drilling rig on April 20, 2010. The defendant is David Rainey, BP's former Vice President of Exploration for the Gulf of Mexico.[1]


Following the explosion, the United States Coast Guard coordinated the spill response by forming a " Unified Command" and installing Rainey as Deputy Incident Commander. Flow-rate estimates, stated in barrels of oil flowing from the well per day (" BOPD" ), acted as the primary metric for gauging the spill's severity and therefore were integral to tailoring response efforts. Initially, the Unified Command estimated a flow-rate of 1,000 BOPD, but the National Oceanic and Atmospheric

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Administration (" NOAA" ) suggested that the flow rate was in fact 5,000 BOPD. The NOAA accompanied its flow-rate estimate with a number of qualifiers, including that its methodologies were " highly unreliable," that its estimate was accurate " to only an order of magnitude," and that the actual flow rate could potentially exceed 5,000 BOPD by ten times. Acknowledging the NOAA estimate, the Unified Command raised its public estimate to 5,000 BOPD.

The NOAA estimate also inspired Rainey independently to research and conduct his own flow-rate estimates. Rainey surfed the internet for " mass-balance" estimates, which is a method to conduct oil-spill estimates based on observing oil floating on the water's surface. Rainey discovered two generally accepted mass-balancing techniques: the American Society for Testing and Materials (" ASTM" ) method and the European (" Bonn" ) method. Rainey's Bonn estimates were significantly higher than 5,000 BOPD, reaching upwards of 92,000 BOPD. As alleged in the indictment, Rainey's ASTM estimates did not conform to ASTM standards and were " manipulated to consistently arrive at or near a 'best guess' of between 5,000 and 6,000 BOPD." Aware of competing estimates, Rainey and other BP executives nevertheless maintained that 5,000 BOPD was the " best guess estimate." Internally, by contrast, BP relied on expert teams using sophisticated methodologies that focused on the conditions at the seafloor. Subsurface engineers at BP sent Rainey their estimates, which estimated that flow rates ranged from 64,000 to 146,000 BOPD. Rainey also knew that other BP engineers estimated a range of 14,000 to 82,000 BOPD.

Conflict between BP's engineers and Rainey notwithstanding, BP stood by its 5,000 BOPD estimate and publically rejected a professor's estimate that the flow rate was approximately 70,000 BOPD. Privately, it is alleged, a BP engineering supervisor sent an email to executives explaining that " [w]e should be very cautious standing behind a 5,000 BOPD figure as our modeling shows that this well could be making anything up to ~100,000 BOPD depending on a number of unknown variables." Rainey received this email, and it fell to him to draft a memorandum defending BP's allegiance to the 5,000 BOPD estimate. The " Rainey Memorandum," as it is referred to in the indictment, selectively omitted evidence calling into question BP's 5,000 BOPD estimate and made material misrepresentations. Among other things, the Rainey Memorandum omitted Rainey's own Bonn estimates and represented that Rainey's own ASTM estimates were central to the Unified Command's decision to raise its estimate to 5,000 BOPD even though Rainey had not provided his ASTM estimates to the Unified Command in advance of the decision to raise the estimate. BP's estimate became harder to sustain, however, and the Unified Command created the " Flow Rate Technical Group," which consisted of independent and government experts. The Flow Rate Technical Group estimated that the flow rate after the blowout was approximately 62,000 BOPD and was 53,000 BOPD at the time the well was shut.

Enter the House Subcommittee on Energy and Environment (the " Subcommittee" ), which was a subcommittee of the Committee on Energy and Commerce of the House of Representatives of the United States Congress. The Subcommittee investigated the blowout and spill, and requested information from BP. In response to a Congressional request for briefing, Rainey informed the Subcommittee that 5,000 BOPD was the most accurate estimate. He explained that the " worst case"

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scenario was 60,000 BOPD, but that this scenario was not possible in part because it assumed removal of the blowout preventer from the wellhead. Rainey did not disclose his own Bonn estimates and other BP internal estimates indicating that the flow rate was higher than 5,000 BOPD.

Subsequently, the Subcommittee Chairman sent BP a letter accusing it of understating the flow rate and requested that BP respond to fifteen questions relating to its flow-rate calculations. Among other requests, the Subcommittee requested that BP explain what methodology supported its 5,000 BOPD estimate, that BP produce all of its documents that relate to its flow-rate estimates, and that BP provide its current estimate of the flow rate and its methodology supporting that estimate. Rainey was the primary source of flow-rate information for BP's response to the Subcommittee. Rainey was aware that everyone within the Flow Rate Technical Group agreed that 5,000 BOPD was too low, but he did not disclose this disagreement to BP's lawyers and other BP employees. Indeed, BP's response omitted key information which would have undercut its 5,000 BOPD estimate. The response did not include, among other things, Rainey's Bonn estimates that ranged up to 92,000 BOPD, key parts of the supervising engineer's estimates ranging up to 82,000 BOPD, the supervising engineer's email indicating concern with BP's 5,000 BOPD estimate, and the subsurface engineers' estimates ranging up to 146,000 BOPD. BP's response also appended Rainey's prior memorandum defending the 5,000 BOPD estimate.


A federal grand jury indicted Rainey for one count of obstructing Congress in violation of 18 U.S.C. § 1505, and one count of making false statements in violation of 18 U.S.C. § 1001. Rainey moved to dismiss the obstruction count (count one) on four separate grounds. First, Rainey argued that § 1505 applies only to a duly authorized inquiry or investigation by a committee and that the Subcommittee Chairman was acting in his individual capacity rather than on behalf of a duly authorized committee investigation when he sent the relevant questionnaire to BP. Second, Rainey argued that the indictment failed properly to allege that he knew of the pending congressional investigation, which is an essential element of § 1505. Third, Rainey argued that § 1505 does not apply to the obstruction of subcommittee investigations. Fourth, Rainey argued that § 1505 was unconstitutionally vague.

On May 20, 2013, the district court dismissed the obstruction count on two alternative grounds. First, the district court determined that § 1505 did not apply to subcommittee investigations and, second, the district court ruled that the indictment did not allege that Rainey knew of the Subcommittee's investigation. On June 19, 2013, the Government moved the district court to reconsider its ruling. That same day a federal grand jury returned a superseding indictment. The district court subsequently denied reconsideration on June 21, 2013, and on July 19, 2013, the Government filed its notice of appeal.


Three issues postpone our discussion of § 1505, as neither party thinks we should decide this appeal. Rainey moves to dismiss the Government's interlocutory appeal as untimely and, alternatively, as moot. The Government, for its part, requests that we hold the appeal in abeyance pending the district court's ruling on the superseding indictment. We deny all three motions.

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In a criminal case, an affirmative appeal by the Government " shall be taken within thirty days after the decision, judgment or order has been rendered." 18 U.S.C. § 3731. The district court dismissed count one on May 20, 2013, but on the thirtieth day after the dismissal, the Government moved the district court to reconsider its ruling. The Government filed its notice of appeal within thirty days after the district court denied its motion to reconsider, but sixty days after the initial dismissal. Rainey argues that the Government's notice of appeal was outside of the thirty-day window provided by § 3731 and therefore is untimely.

Deflating Rainey's argument is the Supreme Court's decision in United States v. Healy, which held that " a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the court disposes of the petition." 376 U.S. 75, 77-78, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). By validating the exact sequence in this case, Healy explained that its holding was " consistent with a traditional and virtually unquestioned practice." Id. at 79. The Supreme Court has repeatedly reaffirmed Healy. See United States v. Ibarra, 502 U.S. 1, 6-8, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (per curiam); United States v. Dieter, 429 U.S. 6, 7-9, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam). Our circuit has followed Healy without pause. See, e.g., United States v. Greenwood, 974 F.2d 1449, 1466-67 (5th Cir. 1992).

Rainey counters that Bowles v. Russell overrules Healy and its progeny. 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). In Bowles, the Supreme Court held that a district court could not extend a party's time for filing an appeal beyond the statutorily prescribed period. Id. at 206. The Court reasoned that " [l]ike the initial 30-day period for filing a notice of appeal, the limit on how long a district court may reopen that period is set forth in a statute." Id. at 213. The filing period is a jurisdictional limit, the Court continued, and " this Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 214.

There is a certain friction between Healy 's atextual recognition that a motion to reconsider renders a judgment not final and Bowles 's elimination of judge-made exceptions to statutory filing periods, but we must read these cases favoring reconciliation, especially when Bowles does not mention Healy or any of the cases Rainey contends are now overruled. See, e.g., In re Pilgrim's Pride Corp., 690 F.3d 650, 663 (5th Cir. 2012) ( " [W]e exercise restraint when determining whether a Supreme Court decision has produced an intervening change in the law." ). The Supreme Court instructs that if " a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (internal quotation marks omitted). Healy directly controls and also may be distinguished from Bowles because it does not extend the statutory prescribed filing period, but delineates when the thirty-day period begins to run. Under Healy, the Government ...

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