Assistant U.S. Attorney Rudy E. Renfer, who worked in the U.S. Attorney's Office for the Eastern District of North Carolina for 17 years, made the announcement while reading a statement to U.S. Magistrate Judge Robert T. Numbers II during a show-cause hearing in Raleigh. Renfer represented the U.S. Department of Defense and its top brass in a healthcare benefits lawsuit brought by veteran and licensed attorney Derence V. Fivehouse.
Renfer stated that the errors resulted from using AI to "catch up" on a draft filing after realizing he'd accidentally overwritten it.
"I did not knowingly make a false representation to the court," Renfer reiterated.
Judge Numbers, clearly skeptical of Renfer's statement, pulled up a slide deck which enumerated several errors in recent case filings and asked him to explain every single one. He said the mistakes appear "diametrically opposed" to Renfer's statement that the errors were unintentional.
"It's difficult to credit your response given what you've done here," Judge Numbers said, referencing a misattributed quote in circuit court case law.
The bench slap was prompted by Fivehouse alerting the court that the DOD's response to his motion to supplement the administrative record contained fabricated quotations and misstated case holdings.
Fivehouse is challenging a policy change that excludes certain TRICARE For Life beneficiaries from coverage of GLP-1 medications. He's a retired U.S. Air Force colonel and former civilian attorney with the military branch.
He told Law360 that he came out of retirement to challenge the decision and chose to represent himself because the Defense Health Agency gave those impacted by the coverage termination just 30 days to react. He did not appear in court Tuesday.
Renfer was joined in court by U.S. Attorney for the Eastern District W. Ellis Boyle and fellow AUSA Neal Fowler.
Boyle apologized on behalf of the office, stating "there's no excuse" for the errors. He said an investigation is underway at the DOD's Office of Professional Responsibility. He also handed Judge Numbers a letter he said was sent to the entire office about the situation but did not expound on what it said.
According to Judge Numbers' show-cause order, Renfer's errors cropped up in several of the DOD's response motions as it resisted the former colonel's bids for a preliminary injunction, summary judgment and for the court to take judicial notice of certain matters.
Throughout the hearing, Judge Numbers seemed unmoved by Renfer's explanations and said he was deeply troubled by the series of misstatements, which included misquoting case law and DOD regulations.
The bulk of these issues occurred in a response in opposition to Fivehouse's motion to supplement the administrative record.
For example, the actual language of a quote from the Fourth Circuit's 2009 ruling in Ohio Valley Environmental Coalition v. Aracoma Coal Co.
is "close but different," the jurist said.Renfer explained that he'd been working simultaneously on a series of motions in early December and accidentally overwrote the draft of that response. When he later realized, he said he panicked and used AI to "catch me back up to where I was."
Yet he failed to go back in and edit that filing as he usually would, Renfer told the judge, rending what was submitted a "draft."
Judge Numbers didn't let up, expressing confusion at the concept of filing anything that wasn't final. He asked why, for any reason, Renfer used generative AI to draft anything, knowing that attorneys around the country are facing sanctions for AI use.
He called Renfer's attention to a response that cited language from a 1990 Fourth Circuit case, yet that language didn't appear in the case at all.
Renfer explained that he later found stronger language in a different case to support his legal position but failed to update the citation, leaving what was a real quote attached to the wrong case.
"I find that difficult to believe," Judge Numbers replied.
The jurist also took issue with Renfer's explanation in court filings that framed the errors as clerical and entirely "inadvertent." He asked why Renfer didn't admit in that filing that he'd used AI and failed to edit. Renfer replied that he and Paige O'Hale, then-chief of the Civil Division, decided the surreply was appropriate.
He explained that he used AI to create an outline by asking it to identify legal issues in Fivehouse's filing that he could respond to but never asked it to draft the filing outright.
"Your honor, I saw it as a tool," Renfer said, noting the errors were straightforward, rather than monumental changes.
Judge Numbers was unimpressed, stating what makes the errors more outrageous is that none are cutting-edge issues that require "deep thought."
"Why are you using AI to do basic issue spotting work that attorneys do every day?" Judge Numbers asked.
Judge Numbers added that the court reviewed his filings in other cases and found numerous instances of minor mistakes, like misplaced words, though nothing as egregious to suggest AI use. He warned the attendees that federal courts have ways to check the accuracy of court filings.
"I have grave concerns that this is not limited to this case," he said.
Renfer repeated multiple times he was being sincere in his replies. He stated he gained nothing from lying to the court, and was not scheming or trying to be "obtuse." He largely rejected the notion that he'd violated any of the North Carolina Rules of Professional Conduct.
Boyle stated that today was the first time he was hearing from Renfer about his AI use, though he suspected it might be the case after seeing a copy of Renfer's surreply. The office is now taking steps to re-confirm policies about attorneys' use of AI, he said.
Judge Numbers told Boyle that Renfer's comment about O'Hale, and her thumbs-up on the surreply, were "immensely disturbing" and he might have to hear from her on the matter. Boyle stated O'Hale is no longer with the office.
Fivehouse is representing himself.
The DOD is represented by Neal Fowler of the U.S. Attorney's Office for the Eastern District of North Carolina.
The case is Derence V. Fivehouse v. U.S. Department of Defense et al., case number 2:25-cv-00041 in the U.S. District Court for the Eastern District of North Carolina.
--Editing by Dave Trumbore.
For a reprint of this article, please contact reprints@law360.com.
