author: JAMES L. DENNIS, Circuit Judge: JONES, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Marcelo MONSIVAIS, also known as Marcelo Monsivais-Castro, Defendant-Appellant
    No. 15-10357
    United States Court of Appeals, Fifth Circuit.
    Filed February 2, 2017

      Brian Walters Stoltz, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Jacob Austin Blizzard, Parker & Blizzard, P.L.L.C., Abilene, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

The events leading to the arrest and conviction of Marcelo Monsivais occurred on the side of Interstate 20 roughly midway between Abilene and Fort Worth, in Palo Pinto County, Texas. On September 22, 2014, during' daylight hours, Deputy John Baker of the Palo Pinto County Sheriffs Office and City Marshal Abel Saldana of Strawn, Texas, were on patrol in a marked sheriffs car traveling east on 1-20 when they saw Monsivais walking east on the opposite side of the Interstate away from an apparently disabled truck. Baker drove the squad car across the median and headed back toward Monsivais to offer him roadside assistance, or as they put it, to do a “welfare check.”

Baker stopped the squad car on the side of the highway facing Monsivais as he approached and activated the car’s emergency lights as a traffic safety precaution. Monsivais, however, did not stop but continued walking past the squad car in his eastbound direction (toward Fort Worth). About the time Monsivais passed the back of the squad car, the officers exited and Baker began asking Monsivais questions. Baker could not remember exactly what he said but thought his questions were about where Monsivais was headed, where he had been, and if he needed any help. The officers testified that Monsivais said he was heading to Fort Worth; that he appeared nervous and jittery, but was polite in responding to the questions; and that he repeatedly put his hands in his pockets, but took them out each time at Baker’s request.

Baker testified that after approximately four minutes, he told Monsivais that he was going to pat Monsivais down for weapons “because of his behavior” and “for officer safety reasons.” After being so informed, Monsivais told the officers that he had a firearm in his waistband. Saldana grabbed Monsivais’s right hand, bent his arm behind him, and seized the firearm. Both officers then restrained and handcuffed Monsivais. When asked for identification, Monsivais directed the officers to his wallet in his pocket, where they found an expired Mexican passport. Their continued searches of his clothing revealed a pipe and two small baggies of methamphetamine. Monsivais was arrested and later charged with possession of a firearm while being unlawfully present in the United States. See 18 U.S.C. § 922(g)(5).

Monsivais filed a motion to suppress the evidence obtained as a result of the seizure and the searches. After a hearing at which the officers testified (but Monsivais did not), the district court denied Monsivais’s motion to suppress, stating only that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant’s demeanor, remarks, and for officer-safety reasons.” Monsivais pleaded guilty but reserved his right to appeal the denial of his motion to suppress. He timely appealed, arguing that the district court judge erred in failing to exclude the firearm and other evidence because the officers did not have reason to suspect him of a crime as a basis for an investigatory detention, or reason to suspect him of being armed and dangerous as a basis for a protective frisk for weapons. We agree that the district court’s failure to exclude the firearm and other evidence was in error because the officers lacked a basis to reasonably suspect him of a criminal act before seizing him; therefore, we need not determine whether the officers also lacked reasonable suspicion that Mon-sivais was armed and dangerous.

I

While the Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual, under the “very narrow exception” announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014). Although “reasonable suspicion” is more than a “mere hunch,” it “need not rise to the level of probable cause.” United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008) (quoting United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)). An “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” an intrusion into the privacy of the detained individual. Terry, 392 U.S. at 21, 88 S.Ct. 1868. To find that reasonable suspicion existed to justify a stop, a court must examine the “totality of the circumstances” in the situation at hand, in light of the individual officers’ own training and experience, and should uphold the stop only if it finds that “the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

The standard for appellate review of reasonable-suspicion determinations is de novo. Id. at 275, 122 S.Ct. 744 (citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). “The government bears the burden of showing the reasonableness of a warrantless search or seizure.” United States v. Jaquez, 421 F.3d 338, 341 (5th Cir. 2005) (citing United States v. Chavis, 48 F.3d 871, 872 (5th Cir. 1995)). In reviewing the denial of the motion to suppress, “[w]e view the evidence in the light most favorable to the party that prevailed in the district court,” in this case, the Government. United States v. Solis, 299 F.3d 420, 435-36 (5th Cir. 2002) (quoting United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001)).

Under the principles established by the Supreme Court, it is undisputed that Deputy Baker effectively seized Mon-sivais when he announced that he was going to pat him down; Deputy Baker thereby clearly asserted his authority as a peace officer to seize Monsivais so that any reasonable person in Monsivais’s position would have known that he had been detained. at that moment and was no longer free to walk away. See Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a) (5th ed. 2012) (discussing Mendenhallr-Royer “free to leave” test). In so doing, Deputy Baker converted the officers’ roadside assistance or “welfare check” into an investigatory stop or detention of Monsivais. The Government agrees that Deputy Baker’s seizure and frisk of Monsivais commenced when Baker announced that he was going to pat Monsivais down. Therefore, the focal point of our analysis is whether the totality of the relevant circumstances that transpired before Deputy Baker’s announcement of the pat-down revealed ar-ticulable facts from which an officer could reasonably suspect that Monsivais had committed, was committing, or was about to commit a criminal offense. If the totality of circumstances did not, we must conclude that Deputy Baker’s seizure of Monsivais did not fit within Terry or any other exception to the warrant requirement and was a violation of the Fourth Amendment.

II

The police officers testified that prior to Monsivais’s seizure they did not suspect Monsivais of any criminal activity. Deputy Baker, who at the time had made more than 100 traffic stops in his career, testified that when he got out of the patrol car to speak to Monsivais he did not place his hand on his weapon or disconnect its clip as he would have in a traffic violation stop situation. Deputy Baker further testified that when he first encountered Monsivais he did not suspect him of any criminal act; when he began to question Monsivais he did not suspect him of any criminal act; and when he told Monsivais he was going to pat him down, he did not suspect him of a criminal act, saying, “I wouldn’t say a criminal act, no. He was just acting suspicious.” Baker also testified that if he encountered a stranded motorist who ran away from him and his car’s flashing lights, he would not pursue such a person, and that if Monsivais had not taken his hands out of his pockets as requested, Baker would have continued to request that Monsivais do so and “told him to keep walking” if he did not comply. He testified that he would not have tried to detain Monsivais further or pat him down and that he believed Monsivais was free to walk away before he began the pat-down by announcing it to Monsivais. Marshal Saldana, who had over thirty years of experience as a peace officer, testified consistently with Deputy Baker that prior to Baker’s announcement that he was going to pat Monsivais down and Monsivais’s statement that he had a firearm in his waist, the officers had observed nothing that made them reasonably suspect that Monsivais had committed, was committing, or was about to commit a criminal act.

The Government argues, however, that the following facts, when considered together, support a reasonable articulable suspicion that justified the detention and frisk of Monsivais: (1) Monsivais’s jittery demeanor and habit during questioning of putting his hands in his pockets; (2) his confusion as to where he had been and his allegedly inconsistent statement that he was headed to Fort Worth when his apparently disabled truck was pointed toward Abilene; and (3) the fact that he walked past and away from the squad car after the officers stopped and turned on their flashing lights.

To evaluate the Government’s argument, we begin by assessing the value associated with each of the individual facts forming part of the relevant circumstances. We then evaluate these facts' together, in logical relation to one another, in order to discern whether the totality of the circumstances prior to the seizure of Monsivais supports a reasonable suspicion of criminal activity.

A

The Supreme Court has said that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (emphasis added). But, in the present ease, there is no evidence that Monsivais acted evasively. ‘We have never held that nervousness alone is sufficient to create reasonable suspicion of criminal activity. In fact, we often give little or no weight to an officer’s conclusional statement that a suspect appeared nervous.” United States v. Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir. 2002). Many other courts look skeptically upon the probative value of an individual’s nervousness in assessing whether reasonable suspicion of criminal activity exists. See United States v. Chavez-Valenzuela, 268 F.3d 719, 725-26 (9th Cir. 2001) (collecting cases). There are sound and compelling reasons for such skepticism. Nervousness is an “entirely natural reaction to police presence.” United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005). And therefore “it is common for most people ‘to exhibit signs of nervousness when confronted by a law enforcement officer’ whether or not the person is currently engaged in criminal activity.” United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998) (quoting United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997)). Accordingly, nervousness per se carries with it no readily discernible connection to criminal activity. Cf. United States v. Macias, 658 F.3d 509, 520 (5th Cir. 2011) (“Nervousness, standing alone, generally is not sufficient to support reasonable suspicion.”).

The evidence that Monsivais placed his hands in his pockets deserves equally little weight under the particular facts of this ease for similar reasons. See, e.g., United States v. Williams, 731 F.3d 678, 689 (7th Cir. 2013) (“[T]he simple fact that one’s hands are in one’s pockets is.... of little value. If one were to drive down any given street, it is likely that an uncountable number of citizens would have their hands in their pockets.”). To begin, Monsivais complied each time Deputy Baker asked him to remove his hands from his pockets. Deputy Baker testified that he made this request during every citizen encounter. Thus, Baker made this request purely as a standard precaution he took when addressing citizens in traffic stops or other occasions, not only when he suspected that a person was guilty of a crime or was dangerous. Both officers testified that if Mon-sivais had refused to take his hands out of his pockets, or had walked or run away, they would not have pursued him or arrested him, because they didn’t suspect him of any criminal activity. The officers did not testify that Monsivais appeared to be holding something suspicious or dangerous in his pockets. To the contrary, the officers testified that Monsivais was polite and cooperative, and although he appeared to be nervous .and jittery, he did not appear threatening “in any sort of way.”

Regarding Monsivais’s statement as to his destination, it is not clear that there was any inconsistency in his story. According to the officers, Monsivais told them that he “was headed” to Fort Worth, although his stalled vehicle was pointed in the opposite direction. However, Monsivais was in fact walking eastbound towards Fort Worth when he was stopped. The officers did not testify whether they asked Monsivais if Fort Worth was his ultimate destination or only the nearest place he thought he could find gasoline or whatever he may have needed for his vehicle.

Moreover, even if Monsivais spoke inconsistently about his ultimate destination, rather than consistently with the direction he was walking after leaving his disabled vehicle, that inconsistency did not link Monsivais with any reasonably suspected unlawful conduct. The Government mistakenly relies on United States v. Fishel, 467 F.3d 855 (5th Cir. 2006), and United States v. Jones, 185 F.3d 459 (5th Cir. 1999), two cases involving the permissible scope of questioning and searches after valid automobile traffic violation stops. In those cases, unlike in the seizure and detention in the present case, the investigatory detentions were based on officers’ probable cause (i.e., more than reasonable suspicion) that the motorists had violated traffic laws. Fishel, 467 F.3d at 857 (improper lane usage, weaving, expired license); Jones, 185 F.3d at 463-64 (improper lane usage); see generally 4 LaFave § 9.3(a) (“[M]ost traffic stops are made based upon the direct observations of unambiguous conduct or circumstances by the stopping officer. That is, in most of the cases the stopping will have been made on full probable cause.” (footnote omitted)). Although the courts in traffic violation cases purport to apply a version of Terry to determine whether the length and intensity of the detention was unreasonable, the question of whether the initial traffic stop was constitutional is usually not at issue. In the present case, on the other hand, whether Deputy Baker’s initial seizure of Monsivais was constitutional is the crucial issue. In deciding this issue, the basic principles of Terry must be applied with full force and effect. Consequently, traffic violation cases have little or no bearing on whether Deputy Baker and Marshal Saldana violated the Fourth Amendment by detaining and frisking Monsivais — a pedestrian — without reasonable suspicion that he had committed or was committing a violation of the law while walking along the side of the interstate highway after his truck became disabled.

Finally, the Government argues that Monsivais’s walking past the officers’ patrol car without asking for their assistance supports a reasonable suspicion that he was somehow involved in criminal activity. While it may be true that many individuals would gladly welcome police presence during an automobile malfunction, the Constitution does not command individuals to enthusiastically greet law enforcement under such circumstances. To the contrary, the Supreme Court has made it abundantly clear that unless a police officer has reasonable suspicion to conduct an investigatory stop, an “individual has a right to ignore the police and go about his business.” Wardlow, 528 U.S. at 125, 120 S.Ct. 673.

The context in which a person seeks to avoid contact with a peace officer is important. Reasonable suspicion may arise when an individual flees from police in a high-crime area, id. at 124-25, 120 S.Ct. 673; when the officers are already patrolling the area in response to a specific report of criminal activity, United States v. Tuggle, 284 Fed.Appx. 218, 225-26 (5th Cir. 2008); or when the police have received a tip that the fleeing individual had committed a crime, United States v. Holloway, 962 F.2d 451, 460 (5th Cir. 1992). But these situations involve discernable facts or combination of facts specifically linking the fleeing individual to reasonably suspected criminality — e.g., flight in a high-crime area or flight after receipt of a tip indicating criminality. Unlike the facts in these situations, Monsivais’s exercise of his right to avoid contact with the police and to go about his business offers no such linkage to reasonably suspected criminal activity. Moreover, Monsivais did not “flee” the officers, but merely walked past them.

B

We turn now to assessing whether criminal activity by Monsivais could have been reasonably inferred or deduced once all of the facts are considered together in their totality. We conclude that, although Monsivais’s behavior might not have been typical of all stranded motorists, the totality of the circumstances prior to Deputy Baker’s announcement of a pat-down did not point to any reason to suspect Monsi-vais of criminal activity.

Our decision in Hill helps to illumine why the facts offered by the Government, considered all together, do not support a finding of reasonable suspicion in this case. In Hill, while on an investigative patrol, the police approached Regon Hill while he was sitting with his girlfriend in his car, which was parked in her apartment complex. 752 F.3d at 1031-32. An officer demanded to know where Hill’s gun and his driver’s license were. Id. at 1032. When Hill replied that he had neither a gun nor his driver’s license, the police officer ordered him out of his car and conducted a frisk, diming which the officer recovered a firearm. Id. To justify the stop and frisk, the Government emphasized that Hill’s car was parked at an apartment complex in a “high-crime area”; that “he was there at night”; that he “was backed into [a] parking space, which ... is sometimes how people park when they want to conceal their license plate and, by extension, their identity”; and that Hill’s girlfriend exited the car in a “hurrying” fashion when the officers began to approach. Id. at 1035-36.

This court held that Hill’s detention was not supported by reasonable suspicion and was therefore unconstitutional. Id. at 1034. We observed that the Government, rather than pointing to specific and articulable facts that would support a reasonable suspicion of criminal activity, “attempted] to put an ominous gloss on what appears almost entirely ordinary.” Id. Dismissing the Government’s argument that these facts gave rise to a reasonable suspicion, we concluded that “[rjeasonable officers in such circumstances would have very little cause to suspect criminal activity rather than, say, a couple who just arrived home on a weekend night and were preparing to go inside.” Id. at 1038.

A fundamental principle — derived from Terry and underlying our decision in Hill — provides critical instruction in the instant case. “[T]he essence of all that has been written is that the totality of the circumstances — the whole picture— must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 101 S.Ct. 690 (citing Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Thus, if the totality of the circumstances prior to the seizure of the defendant does not provide a particularized and objective basis for suspecting the particular person seized of criminal activity, the seizure violates the Fourth Amendment. Hill’s reasoning recognizes that drawing a reasonable inference is a logical process of reasoning from known facts. See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868 (emphasizing the need for facts and “rational inferences” drawn from those facts, and distinguishing the latter from “inarticulate hunches”); Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (emphasizing the importance of “mak[ing] inferences and deductions” from “cumulative information”) (emphasis added). There must be some articulable premise — some fact linking that behavior to reasonably suspected criminality. Without that premise, there can be no objectively logical reason to impute criminality to a lawful range of behavior.

Keeping these words and the need for an objectively logical step or path to criminality in mind, consider, by way of contrast, Professor LaFave’s incisive discussion of the situation in Cortez, which he views as an “excellent illustration” of what would constitute a “reasonably specific statement by an officer of the circumstances underlying his action”:

[In Cortez\ ..., an otherwise innocent-seeming vehicle was stopped by Border Patrol agents because of a series of inferences drawn by those agents. Piecing together the limited information at their disposal, primarily what was learned from previously discovered tracks indicating the crossing of aliens from Mexico, they deduced: what night another group of aliens likely would be guided by the same person; what time the aliens were likely to arrive; the point on the highway at which they were likely to be picked up; the direction from which the pickup vehicle would likely come; the direction the pickup vehicle would then take; the likely number of aliens which would be brought; and the likely type of vehicle needed to pick up that number of aliens. In holding that a vehicle of that type moving at the predicted time in the predicted directions was lawfully stopped, a unanimous Court quite correctly relied upon the proposition that this result was supported by the fact that trained law enforcement officers are permitted to make ‘inferences and deductions that might well elude an untrained person.’ This is because in Cortez the inferences and deductions had been fully explained at the suppression hearing, and therefore ... ‘a particularized and objective basis’ for the stop was established.

4 LaFave § 9.5(a) (citing Cortez, 449 U.S. 411, 101 S.Ct. 690) (footnotes omitted).

On the facts of this case, we can see no objectively logical path of deduction that leads to reasonable suspicion of criminal activity at the time of Monsivais’s seizure and detention. Unlike in Cortez, neither the Government nor the arresting officers have pointed to an objective fact that is contextually or inherently suggestive of criminal activity by Monsivais prior to the pat-down. And of course, where an articu-lable deductive relationship or connection between facts taken as premises does not form part of an officer’s conclusion of criminal suspicion, then that conclusion cannot be objectively logical and can only be based on an impermissible intuitive sense or feeling — i.e., a hunch.

Ill

The Government has failed to satisfy its burden under Terry of pointing to specific and articulable facts warranting reasonable suspicion that Monsivais had committed, was committing or was about to commit a criminal act prior to his seizure. Looking at the totality of the circumstances without sacrificing the rational inferences that Terry demands, we can see no objectively logical process that justifies interpreting the range of Monsivais’s behavior as reasonably suspected criminal conduct. Therefore, the seizure violated his rights under the Fourth Amendment, and the evidence obtained therefrom must be suppressed. For these reasons, the district court’s denial of the motion to suppress the evidence is REVERSED and Monsi-vais’s conviction and sentence are VACATED.

JONES, Circuit Judge,

dissenting:

The question the majority decide is whether officers formed a sufficient “reasonable suspicion” to attempt patting down a suspect walking away from an apparently broken down truck beside a major highway. Unusual facts imbue this police-suspect encounter, which should have warranted a narrow, fact-bound decision. Instead, my colleagues have chosen to engage in a broad analysis that departs from established Fifth Circuit authority and even from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the interpretive root of Fourth Amendment precedent. I dissent. This conviction should be upheld and, more importantly, the right of peace officers to act for their own safety on facts that would raise suspicion in the minds of any reasonable observer (including judges) should also be vindicated.

Consider first the facts. The patrol officers saw Monsivais walking eastbound on Interstate Highway 20 at dusk, in a rural area, and stopped to offer him assistance. Monsivais fluffed them off, walking directly by their car without saying a word. What kind of person, unless perhaps inebriated, mentally ill, or engaged in criminal behavior, would go around the patrol car to avoid the officers who are the only humans around and who could have helped him? When accosted, his answers to their polite questions made no sense. He couldn’t tell them where he came from. He said he was headed to Ft. Worth, but his car was pointing in the opposite direction. He kept placing his hands in his pockets (where a weapon might be concealed) and had to be reminded multiple times to remove them. He acted extremely nervous and jittery, although the officers were in no way aggressive or threatening.

Who would not have regarded the totality of this bizarre behavior as suspicious? And why give no deference to Deputy Sheriff Baker, who frequently encountered people walking along the highway and never found them nervous in talking with him? Officer Baker had conducted more than a hundred traffic stops, and Officer Saldana had over thirty years of law enforcement experience. The majority concede that Monsivais’s behavior “might not have been typical of all stranded motorists.” This is a clever but misleading judicial understatement. The officers were not harassing a guy on a city street. Law-abiding or sober people whose cars are stuck on the side of a highway, far out in the country, at dusk may fear to seek assistance from non-uniformed good Samaritans. But it is impossible to conceive that they’d flaunt their libertarian instincts to avoid contact with helpful law enforcement officers. The facts cry out reasonable suspicion.

Consider next the majority’s application of long-settled law to the facts. The law is clear that a reviewing court examines the “totality of the circumstances,” in light of the officers’ training and experience, and should uphold the stop only if “the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (internal quotation omitted). Equally important, this court holds that the district court’s denial of a motion to suppress must be upheld “if there is any reasonable view of the evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (emphasis added). The majority’s application of these standards is incomprehensible.

The majority ignore the officers’ training and experience. The majority then deconstruct each item referenced in the officers’ testimony, and finding each one “alone” insufficient to establish reasonable suspicion, stretch to the conclusion that, taken as a whole, they had no reasonable suspicion thát Monsivais had violated or was about to violate the law. The majority conclude that “if the totality of the circumstances prior to the seizure of the defendant does not provide a particularized and objective basis for suspecting the particular person seized of criminal activity, the seizure violates the Fourth Amendment.” They add that, “[t]here must be some ar-ticulable premise — some fact linking that behavior to reasonably suspected criminality.” They characterize the legal requirement as an “objectively logical path of deduction” that is “contextually or inherently suggestive of criminal activity.”

What does the majority’s reasoning mean? Exactly what additional facts were necessary to imply a “context or suggestion” of criminal activity by Monsivais? Did they have to see a bulge in his breast pocket, drug paraphernalia dangling from his pants, smudges of white powder on his clothes? The majority emphasize that the officers had no suspicion of exactly what crime Monsivais might have perpetrated or contemplated, but “reasonable suspicion” is a much lower standard than “probable cause.” Arvizu, 534 U.S. at 274, 122 S.Ct. at 751. Even less does Terry demand “particularized suspicion of a particular, specific crime.” United States v. Pack, 622 F.3d 383, 383 (5th Cir. 2010). In Terry, the officer patdown was approved by the Supreme Court simply on “reasonable suspicion” that the defendants, seen hanging around a jewelry shop, might be casing the establishment for a robbery. 392 U.S. at 28, 88 S.Ct. at 1883. The Supreme Court recently reiterated these bare facts and approvingly summarized the holding of Terry:

Terry established the legitimacy of an investigative stop “in situations where [the police] may lack probable cause for an arrest.” Id., at 24, 88 S.Ct. 1868. When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot, the Court explained, the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily detained are armed and dangerous. Ibid. Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the patdown reasonable under the Fourth Amendment. Id. at 23-24, 27, 30-31, 88 S.Ct. 1868.

Arizona v. Johnson, 555 U.S. 323, 330, 129 S.Ct. 781, 786, 172 L.Ed.2d 694 (2009). In Terry, the Supreme Court relied heavily on the officers’ seasoned judgment. 392 U.S. at 22-23, 88 S.Ct. at 1880-81. Yet under the majority’s reasoning here, bereft of deference to the law enforcement officers, how could the Terry defendants’ walking back and forth in front of the jewelry store constitute an “articulable premise” and a “fact linking [the defendants’] behavior to reasonably suspected criminal activity”?

This court long ago relied on Terry in an en banc decision that upheld an officer’s patdown of a suspect who barged out the back door of a bar at closing time. Michelletti, 13 F.3d at 839. The officer’s suspicions were aroused principally by the aggressiveness of the man’s stride toward a group of men and by his holding a beer in the left hand while his right hand remained in his pants pocket. (A convicted felon, the man illegally possessed a handgun in that pocket.) The majority fail to mention, much less distinguish Michelletti, which has been frequently cited and remains controlling in this court. See, e.g., Allen v. Cisneros, 815 F.3d 239, 245 (5th Cir. 2016); Estep v. Dallas Cty., Tex., 310 F.3d 353, 363-64 (5th Cir. 2002); United States v. Baker, 47 F.3d 691, 694 (5th Cir. 1995); United States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010). Under the majority’s reasoning, what additional facts would have been necessary to create an “objectively logical path of deduction” and uphold the patdown of Michelletti?

The majority cite only one case from this circuit to support suppression of the evidence incriminating Monsivais, and they stretch that ease well beyond its facts. In Hill, this court concluded that officers incorrectly insisted on doing a patdown on the basis of nothing more than “almost entirely ordinary” behavior by the defendant and a woman who’d been sitting in his car in apartment complex parking lot. United States v. Hill, 752 F.3d 1029, 1034 (5th Cir. 2014). This court’s commonsense conclusion was that “[r]easonable officers in such circumstances would have very little cause to suspect criminal activity rather than, say, a couple who just arrived home on a weekend night and were preparing to go inside.” 752 F.3d at 1038. In contrast to Hill, there is nothing “almost entirely ordinary” about Monsivais’s conduct in his encounter with these officers. Hill is readily distinguishable.

It is relevant to the Fourth Amendment inquiry that the officers’ seizure of Monsi-vais involved only the level of intrusion necessary to assure their safety. Scroggins, 599 F.3d at 441. That is to say, the handcuffing and actual frisk occurred only after he had voluntarily revealed a handgun in his waistband. (The record contains no suggestion that Monsivais tried to claim possession of a concealed handgun permit). Recall as well this defendant’s repeatedly reaching into his pockets where weapons might also be concealed. Under such circumstances, officers conducting a Terry stop may pat down and even handcuff a subject to ensure their personal safety. United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998); see also United States v. Hurd, 785 F.3d 311, 315 (8th Cir. 2015) (frisk justified where the person refused to remove hands from pockets when walking toward police).

The majority opinion, in my view, conflicts with Terry and this court’s precedent and may create great confusion for officers on the beat. Over twenty years ago, this court noted in Michelletti that since Terry had been decided, “the number of police officers killed annually in the line of duty has tripled ... [and] the numbers of those assaulted and wounded has risen' by a factor of twenty.” 13 F.3d at 844 (citation omitted). The dangers inherent in law enforcement to officers and the public has, if anything, intensified in recent years. “Surely the constitutional legitimacy of a brief patdown such as occurred here may and should reflect the horrendously more violent society in which we live, [forty-nine] years after Terry.” Id. I respectfully dissent.

      . When a reviewing court determines that an initial investigatory stop was lawful, it must apply a different, more onerous standard to determine whether an ensuing frisk for weapons was lawful. This separate standard is more burdensome, in recognition that a frisk or pat down is "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” Terry v. Ohio, 392 U.S. 1. 17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); Terry, 392 U.S. at 27, 88 S.Ct. 1868. Thus, because the stop or detention of Monsi-vais was unlawful in the first place, the officers could not constitutionally proceed to frisk him or pat him down.

      . In this vein consider the following passage from Hill:

      The point is, because the officers did not observe the scene for more than a few seconds and they had no other reasons to reasonably suspect criminal activity, such as a tip, they lacked a reasonable basis to infer much of anything about the girlfriend exiting the car and taking a few steps towards the apartment during the same time as their arrival.
      752 F.3d at 1037 (epiphasis added).

      . The dissent erroneously cites United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994) (en banc), as supporting the seizure of Monsivais. It clearly does not. In Michelletti, which is clearly distinguishable, , before the officer stopped and frisked the defendant, the officer saw him walk out of a bar at 2 o’clock in the morning after closing time with an open can of beer, thereby committing alcoholic beverage offenses under the Texas Alcoholic Beverage Commission regulations, id. at 841; and the officer observed that "Michelletti, a large and imposing man, was heading straight toward him with a ‘cocky,’ perhaps defiant attitude and his right hand concealed precisely where a weapon could be located,” id. at 842. Thus, the officer in Michelletti pointed to specific and articulable facts warranting suspicion that Michelletti had committed, was committing, or was about to commit criminal acts before the officer stopped Michelletti and patted him down. In stark contrast, the officers here, prior to seizing Monsivais, pointed to no specific or articulable facts warranting suspicion of criminality by Monsivais, and in fact testified that they did not suspect him of any criminal act before Deputy Baker began the seizure of Monsivais by announcing that he was going to pat him down.

      . Compare Inference, The New Shorter Oxford English Dictionary (4th ed. 1993) ("1 The action or process of inferring; Logic the drawing of a conclusion from data or premises; illation.... 2 k conclusion drawn from data or premises; an implication; the conclusion that is intended to be drawn.”) with Hunch, id. ("5 An intuitive feeling. Colloq. (orig.US).”). See also Deduce, id. (“2 Infer, draw as a logical conclusion (from something already known or assumed); derive by a process of reasoning.”).


source: Caselaw Access Project

author: LESLIE H. SOUTHWICK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, EX REL., David R. VAVRA, et al., Plaintiffs United States of America, Intervenor-Appellee v. KELLOGG BROWN & ROOT, INCORPORATED, Defendant-Appellant
    No. 15-41623
    United States Court of Appeals, Fifth Circuit.
    Filed February 3, 2017

      Melissa Nicole Patterson, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Michael Wayne Lockhart, Esq., Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Texas, Beaumont, TX, for In-tervenor-Appellee.
    John Patrick Elwood, Joshua Stephen Johnson, Tirzah Sungyeh Lollar, Vinson & Elkins, L.L.P., Washington, DC, for De-fendan1>-Appellant.
    Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
   LESLIE H. SOUTHWICK, Circuit Judge:

Federal law prohibits kickbacks in connection with Government contracts. In this civil-enforcement action, the Government alleged that Kellogg Brown & Root was liable for kickbacks knowingly accepted by two of its employees. The district court agreed with the Government after imputing the knowledge of those two employees to the company. We AFFIRM the liability arising from one employee, REVERSE as to the other, and REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

Today’s appeal is this litigation’s second journey to this court. Our 2013 opinion comprehensively discussed the facts. See United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 344-45 (5th Cir. 2013). We restate only a few key matters relevant to this appeal.

Kellogg Brown & Root (“KBR”) provided global logistical support to the United States Army under a Government contract executed in 2001 known as Logistics Civil Augmentation Program III (“LOGCAP III”). Under the contract, the Army would issue various task orders which KBR could fulfill either on its own or through subcontractors. Relevant here, KBR subcontracted with EGL, Inc., to perform freight forwarding services.

In January 2004, the relators filed a qui tam action against KBR and EGL, among others, for multiple False Claims Act (“FCA”) violations, some of which involved kickbacks. It was not until more than six years later, in August 2010, that the Government intervened and filed its own complaint. In addition to FCA claims, it alleged that KBR, through its employees, knowingly engaged in kickbacks in violation of 41 U.S.C. §§ 8701-07 (the “Anti-Kickback Act” or the “AKA”). The district court dismissed the Government’s AKA claim, holding the employees’ acts could not be imputed to KBR because the Government had failed to make sufficient allegations that they were acting for KBR’s benefit.

We reversed and remanded, holding the district court applied the wrong standard of vicarious liability and thus improperly concluded the Government had failed to state a claim. Vavra, 727 F.3d at 353-54. On remand, the district court conducted a bench trial and found that two of KBR’s employees, Robert and James Bennett, knowingly accepted kickbacks in connection with LOGCAP III. The court then held KBR liable under Section 8706(a)(1) for knowingly accepting kickbacks. KBR appealed.

DISCUSSION

We begin with a summary of the AKA. The Act prohibits providing kickbacks, soliciting kickbacks, or including kickbacks in contract prices so that the costs of such kickbacks are passed on to the Government. 41 U.S.C. § 8702. Most relevant here, a “kickback” is “any ... gratuity, thing of value, or compensation of any kind that is provided to a ... prime contractor employee ... to improperly obtain or reward favorable treatment in connection with a ... subcontract relating to a prime contract.” Id. § 8701(2). The Government can enforce this prohibition through civil or criminal enforcement, or both. Id. §§ 8706-07.

This case deals with the civil-enforcement provision, Section 8706, which gives the Government two options. The first, Section 8706(a)(1), permits recovery of a civil penalty equal to “twice the amount of each kickback involved in the violation” plus up to $11,000 per kickback, but only if the Government can show that a person “knowingly engage[d] in conduct prohibited by section 8702,” the conduct being kickbacks. Id. § 8706(a)(1); see also Vavra, 727 F.3d at 347 n.6 (explaining the $11,000 figure). The second, Section 8706(a)(2), dispenses with the knowledge requirement and permits recovery “from a person ... whose employee, subcontractor, or subcontractor employee violates section 8702....” Id. § 8706(a)(2). Section 8706(a)(2) permits the Government to recover “a civil penalty equal to the amount of [the] kickback.” Id. Here, the Government alleged only a violation of Section 8706(a)(1).

KBR raises three issues on appeal, all of which are ones of first impression. First, did the district court apply the proper standard for imputing knowledge under the AKA? Second, does the AKA require proof of a connection between the alleged kickback and a specific instance of favorable treatment? Third, does the Government’s AKA claim relate back to the rela-tors’ qui tarn complaint under 31 U.S.C. § 3731(c)? We separately address each issue.

I. Imputing Knowledge Under the AKA

The first issue is whether the knowledge of the two men who received kickbacks can be imputed to KBR so as to subject the company to heightened liability under Section 8706(a)(1). Three potential knowledge-imputation standards are proposed by the parties’ briefing and the history of this case. First, the Government cites our prior opinion in this case to argue that, to impute knowledge from employees to their employer, it need only show the employees had apparent authority. See Vavra, 727 F.3d at 348-49. Second, KBR urges us to insert into the AKA context our standard for knowledge imputation under the Limited Liability Act. There we evaluate eight non-exhaustive factors. See In re Hellenic, Inc., 252 F.3d 391, 397 (5th Cir. 2001). Third, the district court adopted an intermediate standard applying corporate-law principles, which was articulated by Judge Jolly in his separate opinion in the 2013 appeal. See Vavra, 727 F.3d at 356 (Jolly, J., concurring).

We start by noting the scope of our first opinion. We addressed the standard for holding a corporation vicariously liable under the AKA. Vavra, 727 F.3d at 348-49. We held that the AKA, like the common law, imposes “vicarious liability for employee actions taken under apparent authority.” Id. at 352. No explanation of “what ‘knowingly* entails” in Section 8706(a)(1) was provided, as that was a “nuanced” and “fact-reliant” inquiry “unsuited for resolution at the motion to dismiss stage.” Id. at 349. Thus, even though we held that apparent authority was the standard for whether vicarious liability existed, “we ma[de] no determination as to the knowledge requirement of [the] statute.” Id. That determination is now needed.

Judge Jolly argued that the knowledge requirement under Section 8706(a)(1) should be applied. Id. at 354-55 (Jolly, J., concurring). Section 8706(a)(1), “properly construed, ... holds corporations liable only for the knowing violations of those employees whose authority, responsibility, or managerial role within the corporation is such that their knowledge is imputable to the corporation.” Id. at 355. If apparent authority were the entirety of the test under Section 8706(a)(1), “that provision would impose liability identical to [Section 8706(a)(2) ]: an employee who is bribed will always have apparent authority — it would be nonsensical to give a kickback to an employee who lacked the apparent authority to accomplish its object.” Id. at 356. Judge Jolly concluded, therefore, that Section 8706(a)(1) “permits the government to attribute liability to corporate defendants vicariously in cases where the knowledge of the employees is imputable to the corporation.” Id. But because the case was still at the motion-to-dismiss stage, he recognized that the district court would need to further develop the record to make the required knowledge determination. Id. On remand, the district court adopted Judge Jolly’s proposed knowledge-imputation standard.

Before addressing each of the proposed standards, we frame the question we seek to answer. As the Government argues, we generally apply common-law principles of vicarious liability to legislatively created tort actions such as those created by Section 8706(a). See id. at 349 (majority op.). A corporation cannot act or have a mental state by itself, and thus, under the common law, “the acts and mental states of its agents and employees will be imputed to the corporation where such natural persons acted on behalf of the corporation.” Id. at 348 (quoting 10 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Corporations § 4877 (2012 ed.)). It does not follow, however, that the knowledge of any agent can be deemed the knowledge of the corporation: under the common law, only “knowledge of the proper corporate agent must be regarded, in legal effect, as the knowledge of the corporation.” See Fletcher § 787. The relevant question, then, is whose knowledge may be imputed to a corporation under the AKA. That decision “tends to be fact-intensive and contingent upon the specific legal regimes involved.” Hellenic, 252 F.3d at 395. The specific regime here is the AKA.

First, apparent authority alone cannot be sufficient to impute an employee’s knowledge to the employer. As noted, the AKA contains two provisions by which the Government can obtain civil penalties for kickback violations: Section 8706(a)(1), which allows recovery if a person “knowingly engages in” kickback activity; and Section 8706(a)(2), which allows recovery “from a person ... whose employee” engages in kickback activity. These provisions are distinct and give the Government separate enforcement options. The first distinction is the knowledge requirement. The second is that Section 8706(a)(2)’s plain text permits the Government to recover from a corporation for the acts of its employees only “a civil penalty equal to the amount of [the] kickback,” whereas Section 8706(a)(1) permits recovery of twice the amount of each kickback plus $11,000 for each occurrence of prohibited conduct. Of course, “it is entirely consistent for the statute to punish knowing violations more severely than those of which the corporation was unaware.” Vavra, 727 F.3d at 348 (majority op.) (quotation marks and alterations omitted).

An apparent-authority-only standard frustrates these deliberate distinctions, textually and practically. Textually, requiring only apparent authority would pluck “knowingly” from the statutory text and eliminate any difference between the Government’s burdens under Sections 8706(a)(1) and (a)(2). That is, an employee who receives a kickback will almost always have apparent authority because “it would be nonsensical to give a kickback to an employee who lacked the apparent authority to accomplish its object”; requiring only apparent authority to impute an employee’s knowledge under Section 8706(a)(1) would render it indistinguishable from Section 8706(a)(2). Id. at 356 (Jolly, J., concurring). The definition of kickback is illustrative: it includes only conduct “to improperly obtain or- reward favorable treatment....” See 41 U.S.C. § 8701(2).

For this reason, the practical results of adopting an apparent-authority standard would be unusual. The Government would have no reason to prove a kickback occurred under Section 8706(a)(2) because its burden would be the same under Section 8706(a)(1), but that section provides for significantly higher civil penalties than its counterpart. We presume “that statutory language is not superfluous,” and therefore we decline to make Section 8706(a)(l)’s knowledge requirement meaningless. See Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 299 n.1, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006).

The Government argues we can adopt its reading without causing superfluity. Section 8706(a)(2), it says, merely “permits the government to recover even, from those in the contracting chain who unwittingly pass along kickback-tainted charges.” The counterpoint, though, is that “because we can assume a person who is being bribed always knows he is being bribed, the knowledge requirement would not add to [Section 8706(a)(2) ] if it applied to employees rather than to the corporation itself.” See Vavra, 727 F.3d at 354 n.1 (Jolly, J., concurring). The “legal regimes involved,” and specifically the language used by Congress in Section 8706(a), forecloses the Government’s broad interpretation. See Hellenic, 252 F.3d at 395.

We also conclude that the AKA does not warrant the knowledge-imputation standard urged by KBR, which is the Hellenic standard. That case dealt with the Limited Liability Act (“LLA”), which “allows a vessel owner to limit its liability for any loss or injury caused by the vessel to the value of the vessel and its freight” if the owner is “without privity or knowledge of the cause of the loss.” Id. at 394 (quotation marks omitted). Under the LLA, the relevant knowledge-imputation question is whether an employee is a “managing agent with respect to the field of operations in which the negligence occurred.” Id. at 396. To answer that question, Hellenic directed courts to consider eight non-exhaustive factors:

(1) [T]he scope of the agent’s authority over day-to-day activity in the relevant field of operations; (2) the relative significance of this field of operations to the business of the corporation; (3) the agent’s ability to hire or fire other employees; (4) his power to negotiate and enter into contracts on behalf of the company; (5) his authority to set prices; (6) the agent’s authority over the payment of expenses; (7) whether the agent’s salary is fixed or contingent; and (8) the duration of his authority (i.e., full-time or restricted to a specific shift).

Id. at 397.

These factors reflect agency law only “unevenly” through the lens of the LLA. See id. at 395. Part of the unevenness is that the LLA, unlike the AKA, was enacted “in derogation of the common law” to limit liability, not create it. See The Main v. Williams, 152 U.S. 122, 133, 14 S.Ct. 486, 38 L.Ed. 381 (1894); see also Hellenic, 252 F.3d at 395-96. More importantly, Hellenic recognized that “the limited liability doctrine is also sensitive to the scope of an owner’s control over his agents.” 252 F.3d at 396. Under the LLA, therefore, we require a considerable degree of authority before imputing the knowledge of the employee to the owner: “When the owner is so far removed from the vessel that he can exert no control over the master’s conduct, he should not be held to the master’s negligence.” Id. This restraint makes sense in context. Hellenic was clear that when “a corporation grants its agents significant discretion and autonomy, it is reasonable to deny limitation.... ” Id. We have never held that the knowledge-imputation standard under the LLA controls outside that context. We do not start today.

Even so, we find the principles discussed in Hellenic helpful because they reflect common-law corporate principles. Such principles tell us that “a court may deem only the knowledge of officers and employees at a certain level of responsibility imputable to the corporation.” Fletcher § 790. Although “knowledge of agents who are not officers may be imputed to the corporation[,] ... [knowledge of a mere employee of the corporation ordinarily is not imputed to the company.” Id. § 807. “Whether an individual’s knowledge will be imputed to the corporation depends on a factual determination, according to the particular circumstances, of the individual’s position in the corporate hierarchy,” which includes asking if the “employee has sufficient responsibility or authority to impute his knowledge to the corporation ....” Id.

These common-law principles fit comfortably within Section 8706(a)’s two-tiered liability structure and give meaning to “knowingly” as used in Section 8706(a)(1). Adopting such principles is also consistent with our understanding that Congress incorporated common-law vicarious liability rules into the AKA. See Vavra, 727 F.3d at 348.

To be clear, the precise question being asked is whether “a person,” i.e., a corporation, itself has knowledge, not merely whether one of its agents has knowledge. See id. at 354 n.l (Jolly, J., concurring). Answering which agent’s knowledge is the corporation’s knowledge is the linchpin. This analysis will usually involve “developing the evidence, both factual and expert, regarding the employees’ job titles, their actual responsibilities, and their overall place within the company.” Id. at 356. The goal is to determine whether an employee’s knowledge may be fairly imputed to the corporation. “Where the level of responsibility begins must be discerned from the circumstances of each case.” Cf. Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1376 (5th Cir. 1983). Although we do not adopt wholesale the “managing agent” test from the LLA, its focus on the agent’s authority “over the sphere of activities in question” is helpful. See In re Signal Int’l, LLC, 579 F.3d 478, 496-97 (5th Cir. 2009) (quoting In re Kristie Leigh Enters., 72 F.3d 479, 481 (5th Cir. 1996)).

We hold that the proper test for imputing knowledge under Section 8706(a)(1) is that corporations are liable “only for the knowing violations of those employees whose authority, responsibility, or managerial role within the corporation is such that their knowledge is imputable to the corporation.” Vavra, 727 F.3d at 355 (Jolly, J., concurring).

We now turn to the district court’s findings and conclusions. When reviewing a bench trial, findings of fact are reviewed for clear error and legal issues are reviewed de novo. Meche v. Doucet, 777 F.3d 237, 241-42 (5th Cir. 2015). The district court predicted correctly that it should adopt the standard proposed by Judge Jolly. The court found Robert Bennett was responsible for supervising the EGL subcontract, including both general performance and day-to-day operations; for ensuring EGL met its obligations; for communicating with EGL on any performance issues; and for reviewing EGL invoices and submitting them for payment. He was also “part of a collaborative process to determine whether to exercise options under the EGL subcontract and to execute technical evaluations for rebidding the freight forwarding subcontract.” Consequently, the court found Robert Bennett possessed sufficient authority and responsibility to impute his knowledge to KBR. This finding is not clearly erroneous. Although he was neither an executive nor particularly high on KBR’s corporate ladder, the evidence supports ' the district court’s finding that he worked in a supervisory capacity as to the EGL subcontract. In other words, he had somewhat significant managerial authority “over the sphere of activities in question.” See Signal Int’l, 579 F.3d at 496. KBR tasked him with such authority, thus permitting a conclusion that his knowledge may be fairly imputed to KBR. Given such evidence, the record does not support a “definite and firm conviction that a mistake has been committed.” See Barto v. Shore Constr., L.L.C., 801 F.3d 465, 471 (5th Cir. 2015).

As to James Bennett, the .district court found that KBR tasked him with evaluating and awarding the EGL subcontract, in addition to his responsibility for awarding and administering other subcontracts for KBR. It also noted that he had signature authority in the amount of $250,000, as well as the authority to award subcontracts in connection with LOGCAP III. Accordingly, the district court held that James Bennett’s “significant responsibility supports a finding that [his] knowledge may be imputed to KBR.” We see this Bennett’s authority differently. Although he had some authority within KBR as to the initial award of the EGL subcontract, he had almost no further involvement or authority with respect to LOGCAP III. He did not, for example, work on the EGL subcontract during the relevant period and lacked the authority to “take any procurement action regarding ... LOGCAP III.” At one point, James Bennett may have had authority as to the EGL subcontract. During the relevant period, though, he was not in a position in which his “authority, responsibility, or managerial role” would fairly permit imputation of his knowledge to KBR. See Vavra, 727 F.3d at 355 (Jolly, J., concurring). Thus, the record — and indeed the district court’s other findings — undermine the district court’s finding that James Bennett’s limited authority was sufficient to impute his knowledge to KBR. We hold such finding was clearly erroneous.

II. Meaning of “Kickback”

The parties next argue about the meaning of “kickback” under the AKA. We first analyze whether the Government is correct that the issue was not preserved. Generally, “arguments not raised in the district court cannot be asserted for the first time on appeal.” In re Liljeberg Enters., Inc., 304 F.3d 410, 427 n.29 (5th Cir. 2002). Conversely, we will consider an issue “if the argument on the issue before the district court was sufficient to permit the district court to rule on it.” Id. There is no “bright-line rule,” but to preserve its argument for appeal, the “litigant must press and not merely intimate the argument” before the district court. New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 n.4 (5th Cir. 1996) (quotation marks omitted).

The district court here had the opportunity to rule on this issue, and it did. KBR “pressed” that a “kickback” required a connection between the gratuity and specific favorable treatment while opposing the Government’s motion for partial summary judgment. The argument “was sufficient to permit the district court to rule on it.” See Liljeberg, 304 F.3d at 427 n.29. Though the district court did not address KBR’s argument head-on, it definitively ruled against KBR by finding there was “no issue of material fact with respect to whether [Robert] Bennett accepted a kickback in violation of the AKA.” Later, in KBR’s proposed conclusions of law, it referenced the district court’s prior ruling and asked the court to reconsider, noting that “[o]ther federal bribery and gratuity statutes require some indicia that the recipient understood that the gift was offered in exchange for a specific act.” KBR’s argument in the district court was sufficient to preserve the issue for appeal.

We now turn to the merits. The AKA defines a “kickback” as

any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind that is provided to a prime contractor, prime contractor employee, subcontractor, or subcontractor employee to improperly obtain or reward favorable treatment in connection with a prime contract or a subcontract relating to a prime contract.

41 U.S.C. § 8701(2) (emphasis added). KBR does not contest that gratuities were exchanged “in connection with a prime contract.” Rather, the dispute we now examine hinges on the italicized phrase “to improperly obtain or reward favorable treatment.” Specifically, the issue is whether such language requires a connection between the gratuity and the “favorable treatment” sought to be obtained or rewarded. KBR contends it does, relying on the Supreme Court’s federal-bribery-statute jurisprudence. See United States v. Sun-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999). The district court held otherwise. It required the Government to prove only “that the reason one person provided something of value to another was to improperly influence a procurement decision.”

We first summarize what is needed under the provision of the federal bribery statute prohibiting illegal gratuities., The Government must show that something of value was given, offered, or promised to a public official, or demanded, sought, received, accepted, or agreed to be received or accepted by a public official, “for or because of any official act performed or to be performed by such public official.” Id. at 404, 119 S.Ct. 1402 (discussing 18 U.S.C. § 201(c)(1)). In Sum-Diamond, the Government charged a trade association with making illegal gifts to the Secretary of Agriculture, Mike Espy, in violation of Section 201(c)(1). Id. at 400-01, 119 S.Ct. 1402. Those gifts, with an estimated value of about $5,900, were given while there were two specific matters before the Secretary in which the trade association had an interest. Id. at 401-02, 119 S.Ct. 1402. The Government did not prove a specific connection between the gifts and either matter, nor between the gifts and any other action of the Secretary. Id. at 402-03, 119 S.Ct. 1402.

The Court reversed, holding that an illegal gratuity under the federal bribery statute requires proof of a connection between the gratuity and a specific official act performed or to be performed. Id. at 414, 119 S.Ct. 1402. Therefore, the jury charge had been incorrect when it required a showing only that the trade association “gave Secretary Espy a gratuity because of his official position — perhaps, for example, to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.” Id. at 405, 119 S.Ct. 1402. The more natural reading of “for or because of any official act,” the Court held, required that “some particular official act be identified and proved.” Id. at 406, 119 S.Ct. 1402.

An “official act” was “carefully defined,” the Sum-Diamond Court said, “to mean any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” Id. at 406, 407, 119 S.Ct. 1402 (quoting 18 U.S.C. § 201(a)(3)). That definition required “that some particular official act be identified and proved.” Id. at 406, 119 S.Ct. 1402.

The AKA does not provide any similarly detailed statutory definition to guide our analysis. KBR argues that something akin to the bribery statute’s definition of “official act” should be read into the AKA’s requirement of “favorable treatment.” The Government, though, argues that it makes more sense to interpret the AKA’s “improperly obtain or reward favorable treatment” as a generalized requirement, arguing that is consistent with the statute’s text, purposes, and history. It contends the AKA was meant to deter kickback activity among non-government officials regardless of whether the subcontractor intended to obtain generalized or specific “favorable treatment.” The Government would have us limit the statute’s reach through the word “improperly.” There is no statutory definition of that adverb, but the Government offers that it means anything not “innocent” or “incidental.” One problem with that is it provides no reasonable notice to those in the government-contracting arena as to when their acts are innocent and when they are not. “When ... no particular ‘official act’ need be identified, and the giving of gifts by reason of the recipient’s mere tenure in office constitutes a violation, nothing but the Government’s discretion prevents [legal gift giving] from being prosecuted.” Id. at 408, 119 S.Ct. 1402. We will not adopt such a non-standard.

The Government also relies on the 1986 amendments to the AKA. At that time, Congress replaced prior language that the kickback needed to be offered “as an inducement for the award of a subcontract or order ... or as an acknowledgement of a subcontract or order previously award-' ed” with new language that the kickback needed to be “for the purpose of improperly obtaining or rewarding favorable treatment. ...” Compare 41 U.S.C. § 51 (1980) (pre-amendment), with 41 U.S.C. § 52(2) (1986) (post-amendment).

Both parties find something in the Senate Report that accompanied the amendment to support their positions. The Report stated that the earlier language required a specific act, while the new language was expressly meant to broaden the AKA’s scope to “prohibit[] payments made to obtain or acknowledge any type of favorable treatment in the procurement process.” See S. Rep. No. 99-435, at 11 (1986). From KBR’s viewpoint, the helpful Senate Report language is this:

In order to exempt [de minimis gifts] from the bill, the Committee amended the definition of kickback to cover only those transactions made for the purpose of influencing procurement decisions. This change generally excludes inexpensive items from the Act’s coverage, since the exchange of [de minimis] gifts could not reasonably be expected to influence procurement decisions.

Id. A legislative report not voted on by either house of Congress need not become the focus of judicial exegesis. The statute itself controls.

Leaving the Report aside, we note that a common meaning of “favorable treatment,” which is to give someone “a result that is in [his] favor,” can include specific, identifiable treatment, but it can also be read to include generalized treatment. See Merriam-Webster’s Collegiate Dictionary 457, 1333 (11th ed. 2003). Requiring no connection to identifiable treatment makes the line between legal and illegal gift giving difficult to define. We interpret any ambiguity in favor of KBR because Section 8702, which prohibits kickbacks and led to the civil penalties imposed here, also supports criminal penalties when the perpetrator “knowingly and willfully engages” in the conduct. See 41 U.S.C. § 8707. “Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.” Leocal v. Ashcroft, 543 U.S. 1, 11 n.8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

We conclude that the 1986 statutory language of “favorable treatment,” though more general than the prior requirement that the kickback be an inducement for a “subcontract or order,” still requires a link between the kickback and some benefit being sought or already received. A kickback that has the goal of obtaining or rewarding “favorable treatment” requires a pursuit of more than building better customer relations in the abstract. The synonym for “treatment” we find most apt is that the kickback must be for “action,” as opposed merely to developing more congenial feelings. See 18 Oxford English Dictionary 464 (2d ed. 1989) (“action or behav[ior] towards a person”).

The Government argues, though, that Sun-Diamond’s limiting the reach of the statute only applies to illegal-gratuity cases under 18 U.S.C. § 201(c) and should not be extended to the AKA. The Government cites a handful of appellate opinions, including one of our own, questioning or rejecting Sun-Diamond’s application outside the illegal-gratuity context. See United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009); United States v. Garrido, 713 F.3d 985, 1000-01 (9th Cir. 2013); United States v. Abbey, 560 F.3d 513, 520-21 (6th Cir. 2009). Our Whitfield decision and the eases it discussed dealt with bribery, which requires a quid pro quo. In distinguishing Sun-Diamond, for example, a Second Circuit case cited in Whitfield refused to extend Sun-Diamond’s holding beyond the illegal-gratuity context “because the Supreme Court’s chief concern in Sun-Diamond was ‘supplying a limiting principle that would distinguish an illegal gratuity from a legal one.’ ” Whitfield, 590 F.3d at 352 (quoting United States v. Ganim, 510 F.3d 134, 146 (2d Cir. 2007) (alteration omitted)). We explained that “no such limiting principle was required outside the gratuity context, because, unlike the gratuity statute, the extortion and bribery statutes require ... ‘the quid pro quo agreement.’ ” Id.

Whitfield and similar cases are inapplicable because the AKA contains no explicit quid-pro-quo requirement to distinguish legal gifts from illegal ones. It is also unlike the statute at issue in Garrido and Abbey, which required the gift be worth over $5,000. See 18 U.S.C. § 666. In each of those cases, the court thought it significant that the $5,000 “threshold monetary requirement” distinguished between “token gifts” and illegal gratuities. See Garrido, 713 F.3d at 1000; see also Abbey, 560 F.3d at 521.

A “kickback” is more similar to an illegal gratuity under Section 201(c) than it is to the gifts prohibited by Section 666. The Government’s proposed reading would make it difficult for persons subject to the AKA to determine the point at which their conduct becomes illegal. Like the Government’s rejected argument in Sum-Diamond, its interpretation here, would make the terms of the AKA “snares for the unwary.” See Sun-Diamond, 526 U.S. at 411, 119 S.Ct. 1402.

We do, though, agree with the Government that “improperly” does some work. The word helps tie the gratuity to the “favorable treatment.” The most natural meaning is that the “favorable treatment” must be obtained or rewarded in a way that is “improper,” or “not in accord with ... right procedure.” See Merriam-Webster’s Collegiate Dictionary 626 (11th ed. 2003). The boundary may not be perfectly clear, but general guideposts do exist. Generally, there has been no kickback when a private party seeks to build a reservoir of goodwill with the hope or intent of obtaining more business. Among other variables, the size and timing of the gifts and the nature of the favorable treatment will impact whether something improper is occurring.

The Senate Report sought to identify examples of improper and proper conduct. As a general understanding, we con-elude that anything of value offered in order to subvert the “proper” process for awarding contracts is a potential kickback. The Senate Report’s examples are consistent with that understanding. Is the thing of value intended to cause the person in authority to forgive deficiencies in performance, overlook shortcomings in a bid or suggested contract, or obtain some other treatment not generally available? Is the gift of such substantial value: — monetarily or in some other way — as to gain an advantage beyond general goodwill? These are all examples of the pursuit of improper favorable treatment.

We now turn to how the district court dealt with the issue. It found that two KBR employees, Robert and James Bennett, accepted kickbacks from two EGL employees, Smoot and Kessner. We have already held that James Bennett’s knowledge is not attributable to KBR under Section 8706(a)(2). Therefore, any gifts to him are not at issue. We thus review only the gratuities from Smoot and Kess-ner to Robert Bennett.

Smoot testified that Robert Bennett was “the highest-ranking guy that we dealt with, and we wanted to develop a relationship” with him to gain “[m]ore business.” Smoot further testified that he believed Robert Bennett could help future business by “speakfing] favorably] of [the] company” and because “he would have a vote on ... awarding additional contracts when contracts came available.” Such general efforts to develop goodwill and to earn future business through good working relationships, however, are insufficient if believed to support AKA liability by themselves. The district court findings go further, though. When asked why he provided gratuities, Smoot answered that it was because Robert Bennett “would bring service issues to us. Specifically he knew me based on entertaining; so, if they had issues, he would bring them to me before they escalated out of control.” To Smoot, Robert Bennett was “the most important [person at KBR] with regard to controlling service issues.”

These factual findings are not clearly erroneous in light of the record evidence. It is true that the district court did not make any findings as to particular service problems Smoot intended to influence in an improper manner through his gratuities. Yet it is enough to connect the gratuity with the specific kind of treatment sought in a way that establishes impropriety. Because of the nature of the treatment Smoot sought, we find sufficient specificity about the treatment to support a finding of a kickback. The district court found Smoot gave gratuities to overlook performance problems, something that would have otherwise been discordant with the proper process. Such findings support concluding that Smoot gave gratuities to Robert Bennett “to improperly obtain or reward favorable treatment.”

The district court made similar findings as to the gratuities from Kessner to Robert Bennett. It found that Kessner, like Smoot, thought Robert Bennett -was “a decision maker” and had a managerial role in KBR. It also found the object of Kess-ner’s and Smoot’s kickbacks was “to overlook performance issues on the EGL subcontract or to award future subcontracts or business to EGL.” Even though Kess-ner’s belief that entertaining Robert Bennett could help them gain further business is not by itself improper, Kessner’s giving him gratuities to overlook performance deficiencies is improper. We find nothing clearly erroneous in these findings.

III. Relatiorir-Back Under the False Claims Act

We have upheld the judgment that KBR improperly provided kickbacks to Robert Bennett. KBR argues we still must set that aside because of the statute of limitations. Generally, the AKA requires a civil action be brought within six years after the “Government first knew or should reasonably have known that the prohibited conduct had occurred.” 41 U.S.C. § 8706(b)(2). It is undisputed that the Government should reasonably have known that prohibited conduct had occurred as of January 2004, when the relators filed their qui tam complaint. The Government intervened and filed its complaint in August 2010, over six years later.

The Government contends, and the district court held, that the AKA claims are timely under 31 U.S.C. § 3731(c), the subsection of the FCA providing for relation back. Section 3731(c) provides:

If the Government elects to intervene and proceed with an action brought under [Section] 3730(b), the Government may file its own complaint or amend the complaint of a person who has brought an action under section 3730(b) to clarify or add detail to the claims in which the Government is intervening and to add any additional claims with respect to which the Government contends it is entitled to relief. For statute of limitations purposes, any such Government pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the Government arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of that person.

31 U.S.C. § 3731(c). KBR argues that Section 3731(c) permits relation back only for FCA claims, and thus it does not permit the Government’s AKA action.

Both parties rely on Section 3731(c)’s plain language. KBR argues that Section 3731(c)’s first use of “claims” must refer to “FCA claims” because the only “claims” in which the Government can intervene to “clarify or add detail to” are claims in “an action brought under [Section] 3730(b).” We agree. KBR then argues that because courts presume words in a statute are used consistently, “claims” must mean “FCA claims” throughout Section 3731(c). See Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 1708, 182 L.Ed.2d 720 (2012). As a result, only more FCA claims can be added, not AKA or other claims. See 31 U.S.C. § 3731(c).

“A word or phrase is presumed to bear the same meaning throughout a text....” Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012). Canons of construction are guides, and they must be applied pragmatically; and compared to some others, this one “is particularly de-feasible by context.” Id. at 171. Here, context convinces us that, in Section 3731(c), Congress used the term “claims” generally and consistently, modifying it in different ways by placing it in different contexts. The first time Section 3731(c) uses “claims” it means “FCA claims” because the surrounding words provide it that meaning. The Government may “clarify or add detail to the claims” in which the Government is intervening, which are, because of the surrounding language, necessarily claims in “an action brought under [Section] 3730(b).” To read it otherwise would not make sense.

The second time “claims” is used, though, its context is different — “to add any additional claims with respect to which the Government contends it is entitled to relief.” This context does not limit the term. Rather, this part of Section 3731(c) permits the Government “to add any additional claims.” That phrase suggests a broad meaning. “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (emphasis added) (citation omitted). In the context of Section 3731(c), therefore, “claims” need not be FCA claims. The term is used consistently throughout Section 3731(c), but not in the narrow sense KBR argues.

This is not to say that the Government may take advantage of Section 3731(c)’s relation-back provision by adding any claims (FCA or not) to any qui tarn FCA complaint. Indeed, the second sentence of Section 3731(c) provides the key limitation: “any such Government pleading shall relate back” to the original filing date “to the extent that the claim of the Government arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of th[e] person.” 31 U.S.C. § 3731(c). Thus, as with Federal Rule of Civil Procedure 15, a new claim or pleading will not relate back when it “asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” See Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). Rather, to relate back, a new claim must be “tied to a common core of operative facts.... ” Cf. id. at 664, 125 S.Ct. 2562.

We conclude that this reading creates no internal inconsistency even though Section 3731(d) uses “cause of action” rather than “claim.” Subsection (d) reads: “In any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.” To KBR, the contrasting language suggests that “cause of action” should be read to mean “legal theory of a lawsuit” whereas “claims” should be read to refer to factual allegations under the FCA. Although we agree the terms have distinct meanings, we see no reason to constrict “claim” in that manner. That term generally refers to “[t]he aggregate of operative facts giving rise to a right enforceable by a court.” Black’s Law Dic-tionaey 264 (8th. ed. 2004); cf. Fed. R. Civ. P. 8(a). “Cause of action,” on the other hand, can refer to a legal theory. Black’s Law Dictionary 235 (8th ed. 2004). Each term can retain its distinct, natural meaning and still coexist within Section 3731 without adopting KBR’s narrow construction. For instance, it would be strange for Section 3731(d) to say that the United States “shall be required to prove all essential elements of the [claim],” referring to the facts giving rise to a right. A distinct term, “cause of action,” was used to convey a distinct meaning. Likewise, it was not necessary to use “cause of action” instead of “claims” in Section 3731(c); the natural meaning of “claims” includes non-FCA claims. Under our reading of “claims,” the language is internally consistent.

Finally, KBR argues the Government’s AKA claims do not relate back because it did not continue to pursue its FCA claims after they were dismissed in April 2012. Section 3731(c) becomes operative only “[i]f the Government elects to intervene and proceed with an action brought under [Section] 3730(b).... ” 31 U.S.C. § 3731(c). KBR argues the Government “unquestionably declined” to “proceed” with an FCA action because it abandoned its FCA claims before this appeal. The argument has some purchase, but not enough. The Government did proceed with the FCA claims when it intervened and filed its complaint in August 2010. When it did so, the rest of Section 3731(c) became operative, and the Government’s AKA claims related back to August 2004. See id. The later dismissal of the Government’s FCA claims did not change that. “The viability of a cause of action in an original complaint does not necessarily affect the application of the relation-back doctrine.” Cf. Watkins v. Lujan, 922 F.2d 261, 264 (5th Cir. 1991) (discussing relation back in the Rule 15 context).

Even so, KBR argues the district court erred by accepting as timely nine alleged kickbacks occurring between January and June 2004. Such gratuities, it argues, occurred after the relators’ original complaint yet more than six years before the Government intervened in August 2010 and thus neither relate back nor are timely. The district court agreed with KBR that the Government’s complaint did not relate back to conduct occurring after the relators’ January 2004 complaint. Nonetheless, it held that KBR had failed to satisfy its burden of showing the Government knew or reasonably should have known the post-January 2004 AKA violations had occurred.

The district court correctly noted that KBR, as the party asserting the statute-of-limitations defense, bore the burden of proving limitations barred the Government’s claims. See Frame v. City of Arlington, 657 F.3d 215, 239 (5th Cir. 2011) (en banc). It had to demonstrate the Government “first knew or should reasonably have known that the prohibited conduct had occurred” prior to August 2004, six years before the Government intervened and filed its complaint. See 41 U.S.C. § 8706(b)(2); cf. Gabelli v. SEC, — U.S. -, 133 S.Ct. 1216, 1224, 185 L.Ed.2d 297 (2013). KBR did nothing to show the Government knew or should reasonably have known of the alleged kickbacks occurring between January and June of 2004, nor did the Government’s “allegations affirmatively demonstrate that [its] claims [were] barred by the statute of limitations and fail to raise some basis for tolling.” See Frame, 657 F.3d at 240. Whether the Government should have reasonably discovered the alleged kickbacks is a mixed question of law and fact that we review for clear error. See Colonial Penn Ins. v. Market Planners Ins. Agency Inc., 157 F.3d 1032, 1036 (5th Cir. 1998). We cannot say the district court clearly erred in determining that KBR failed to establish the Government’s post-January 2004 claims were time-barred.

The district court did not clearly err by finding Robert Bennett’s knowledge was imputable to KBR or by finding he accepted gratuities meant to improperly obtain or reward favorable treatment. It thus did not err in holding KBR liable for kickbacks accepted by. that Bennett. Nor did it err in determining the Government’s claims related back to the relators’ qui tam complaint. We AFFIRM those portions of its judgment.

The district court did clearly err by finding KBR liable for the gratuities accepted by James Bennett. We REVERSE that portion of the district court’s judgment. We REMAND so that the district court may enter judgment consistent with this opinion.

      . It has been said that a third party must “reasonably believe’' the actor has authority. Restatement (Third) Of Agency § 2.03 cmt. d (2006). Unreasonable decisions may be made at times by prospective kickbackers. We thus do not bold that a bribed employee will always have apparent authority. The potential for kickbacker error, though, does not undermine the basic point of Judge Jolly’s analysis.

      . The district court found that James Bennett had $250,000 signature authority, which contributed to it finding his knowledge imputable to KBR. In light of the other record evidence indicating that other KBR employees had significantly more signature authority, this relatively low signature authority seems to indicate limited rather than significant authority. See Hellenic, 252 F.3d at 397.

      . A recent decision in the bribery context reaffirmed Sun-Diamond's analysis. See McDonnell v. United States, - U.S. -, 136 S.Ct. 2355, 2370, 195 L.Ed.2d 639 (2016).

      . The Senate Report lists examples of “favorable treatment,” none of which are simply generalized treatment:
      Examples of “favorable treatment” covered by S. 2250 include, but are not limited to, receiving improper advance notice of a request for bids on a subcontract; obtaining certificalion as an eligible bidder without meeting the proper standards or when the bidders list has been improperly restricted; obtaining normally unavailable information about a competitor's bid or a project that is the subject of the subcontract; receiving unusual assistance in writing a bid; being allowed to submit a bid after a deadline has passed; receiving improper sole source consideration; improperly obtaining an award; obtaining unwarranted contract modifications; obtaining acceptance of substandard goods; being permitted to charge inflated prices or to recover improper expenses; and, in the case of independent sales representatives, receiving improper referrals of persons interested in bidding on subcontracts.
      S. Rep. No. 99-435, al 11 (1986) (emphasis added).

      . There is some conflicting evidence in the record. Smoot and Kessner testified, for example, that they were not "trying to get [KBR] to accept substandard service” or "overlook performance deficiencies." Such self-serving denials do not prevent contrary findings to be made based on the overall record.

      . The record suggests such instances did exist, but the district court made no findings. For example, Smoot recalled two particular service problems, which had presumably been resolved by Robert Bennett without escalation.

      . In addition to being textually strained, KBR’s reading would undermine judicial efficiency. Under it, the Government would often be required to engage in multiple lawsuits to litigate related FCA and AKA claims, even if such claims arose from the same underlying conduct, occurrences, or transactions. We conclude that Section 373l’s text militates against such a reading.

      . In its reply brief, KBR argues that ‘ [b]y rejecting KBR’s statute-of-limitations affirmative defense based solely on the parties' legal briefing, the district court effectively granted summary judgment against KBR,” and so it urges us to review the issue under our summary-judgment standard. We disagree and thus decline to do so.