Opposition Brief — United States ex rel. Paul v. Parsons, Brinkerhoff, Quade & Douglas, Inc.

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7 DEC 21 199§

No. 95-919

——s icone

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

UNITED STATES ex rel. PAUL,

Petitioner,

Vv.

PARSONS, BRINCKERHOFF,

QUADE & DOUGLAS, INC., et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

BATTELLE MEMORIAL INSTITUTE,

PROJECT MANAGEMENT DIVISION

Frederick Robinson*

Brent J. Fields

FULBRIGHT & JAWORSKI L.L.P.

801 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 662-0200

Counsel for Respondent

Battelle Memorial Institute,

Project Management Division

*Counsel of Record

QUESTIONS PRESENTED

I. Whether the jurisdictional provisions of

the False Claims Act ("FCA"), 31 U.S.C. § 3730(b)

(1994), which provide that an action under the FCA

"may be brought in any judicial district . . ." (emphasis

added), divest state courts of jurisdiction to hear cases

brought under the FCA.

II. If not, whether the district court clearly

erred in its finding that Petitioner’s FCA action was

barred by the doctrine of res judicata, as governed by

Texas law, where: (1) Petitioner had already fully

litigated his employment dismissal in a prior state-

court action in Texas; (2) the prior state-court action

was a final judgment on the merits by a court of

competent jurisdiction; (3) Respondent, Battelle

Memorial Institute, Project Management Division

("BMI"), was, for purposes of res judicata, in privity

with the defendant in the prior state-court action; (4)

the prior state-court action and the FCA suit arose

from the same operative facts; and (5) the FCA claims

could have been brought with the prior state-court

action.

TABLE OF CONTENTS

Page(s)

SURIBINCTION «0 oci vibiecesaveeaseeee l

PROCEDURAL HISTORY .............005. 2

A. District Court Proceedings ....... 2

B. Court Of Appeals Proceedings .... 4

BACKGROUND FACTS oc cscctiessvscteses 6

A. Construct FEMNOGY i oo 6 0:6 00-0 3b 0's 6

B. Litiontion FEIGOEY oo ccc ccnee ves 7

SUMMARY OF ARGUMENT .............. 9

ARGUMENT .... «sks dvedeewues ai eens 10

I. The Lower Courts Correctly Found

That This Action Is Barred By

Paul’s Failure To Bring His False

Claims Act Action With The Prior

State-Court Action ............. 10

A. State And Federal Courts

Have Concurrent

Jurisdiction Over False

Claims Act Suits ......... 10

B. The Lower Courts’ Claim

Preclusion Analyses

Properly Relied Upon The

Law Of The State Of

AO SO 15

C. The Lower Courts Properly

Found That Paul’s Instant

False Claims Act Suit

Constitutes the Same Cause

of Action As His Prior

State-Court Claim ........ 16

D. The Lower Courts Properly

Found That The Present

Parties Were Either Parties

Or In Privity To Parties To

The Prior State-Court

EE ea 19

1. BMI Is A Privy With

PB-KBB With

Regard To The Prior

State-Court

2. The Preclusive

Nature Of The Prior

State-Court Action

Binds Paul Because

He Was A Party To

That Action ........ 21

E. The Fifth Circuit Properly

Declined To Address Paul’s

Attacks On The Validity Of

The Prior State-Court

Judgment And, In Any

Event, Paul’s Attacks Are

DE oc owcia wet ia es <

1. Jurisdiction For

Paul’s State-Court

Action Was Properly

Vested In The Texas

State Court ........

2. The State-Court

Judgment Cannot Be

IL. Paul’s Attacks On The Magistrate

Judge’s Ruling Raise No Matters

Warranting The Grant Of

CS ead cvsccaceeeecne

CAE AMEET,. ¢hv.wddleieesteccaweneeeess

ili

TABLE OF AUTHORITIES

CASES Page(s)

470 S.W.2d — Bum. 2088). ocdicvdvasces 16

Allen v. McCurry, 449 U.S. 90 (1980) .........-. 15

980 F.2d 1342 (10th Cir. 1992) ......... 28

837 wae 627 (Tex. 1992) .....-..-- 17, 18

663 S.W.2d 816 (Tex. 1984) ............ 16

771 F.2d 952 (6th Cir. 1985) cert, denied,

ry beh Bf: SAA eer eee 27

968 US. GOB (19GB) .. ccc cicccscccces 11

Dobbs v. Navarro, 506 S.W.2d 671

(Tex. App. -- Houston [1st Dist.]

1974, BO WHER) cccccccccccccccceseces 17

1994 U.S. Dist. LEXIS 13693 (E.D. Pa.

Sank GE as ree. 22

Fidelity Standard Life Ins. C Fj

‘ 382 F. Supp.

956 (S.D. Ga. 1974), aff'd, 510 F.2d

272 (5th Cir.), cert. denied, 423

Ce SG er ee 26

Flores v. Edinburg Consol.

Indep. Sch. Dist., 741 F.2d 773

es RO Re ee ee 17

F C cae I

Revenue, 111 S. Ct. 2631 (1991) ........ 23

Gill v, Franklin C W Di

520 S.W.2d 503 (Tex. Civ. App. --

Texarkana 1975, no writ) .......... 26-27

Good vy. Allain, 823 F.2d 64

os ere ey 28

453 U.S. 473 (1981) .......... 11, 12-13, 15

Hogue v. Royse City, 939 F.2d 1249

Gah: Cie Wes ee oS ee 15, 17

In re Grand Jury Proceedings,

517 F.2d 666 (5th Cir. 1975) ........... 23

Jones v. United States,

ott F 9:00 ee ee 23

Langston v. Insurance Co, of N. America,

827 F.2d 1044 (5th Cir. 1987) ....... 16, 18

355 U.S. 339 (1958) .....-- eee ee eee 23

Lemon v. Spann, 633 S.W.2d 568 (Tex. App. --

Texarkana 1982, writ refdnre.) ....... 20

Vv i Ww

Comm’n, 812 F.2d 717 (D.C. Cir.), cert.

denied, 483 U.S. 1023 (1987) ..........-.. 8

Paul v. P.B.-K.B.B., Inc.,

3 MSHC 2006 (1985) .....--- ccc eeeeees 8

Paul v. P.B.-K.B.B., Inc., 801 S.W.2d 229

(Tex. App. -- Houston [14th Dist.] 1990,

wrth Gemlee) ccc cv ccecses 3, 8, 9, 18, 23, 26

Pirtle v. Gregory, 629 S.W.2d

OY, ee ee ee 24

Governors of Fed. Reserve Sys.,

548 F. Supp. 157 (N.D. Ge. 1982) .... 21-22

Raney v. Mack, 504 S.W.2d 527 (Tex. Civ. App. --

Texarkana 1973, no writ) .....--++-+++> 26

i Vv ick,

1991 U.S. Dist. LEXIS 418 (N.D. Ill.

Jam. 10, 1901) ...ccccccccseccoses 13, 22

Schutten v. Shell Oil Co.,

421 F.2d 869 (5th Cir. 1970) ..........-. 25

Soto v. Phillips, 836 S.W.2d 266 (Tex. App. --

San Antonio 1992, writ denied) ......... 20

Taffli Levitt

493 U.S. 455 (1990) ............. 11, 12-13

United $ 1 Harti Palum!

Bros., Inc., 797 F. Supp. 624 (N.D. III.

Bs oo eb eVerGedseetiuleds 11, 12, 13

of Health Sciences/The Chicago Medical

Sch., 1993 U.S. Dist. LEXIS 17306 (N.D.

ie Es CE. bb Coen 20a Nb 0 13, 22

United S 1. Paul v. P Brinkerhoff

Quade & Douglas, Inc., 860 F. Supp. 370

(S.D. Tex. 1994), aff'd without op. 53

F.3d 1282 (5th Cir. 1995)........... 1, 3, 4

United States ex rel. Paul v. Parsons,

Brinkerhoff, Quade & Douglas, Inc.,

F.3d 1282 (5th Cir. 1995) (unpublished

OURS oii oes 8 eee EE Chews coe 5, 22-23

United $ Fire Ine C Millard,

847 S.W.2d 668 (Tex. App. -- Houston

Llet DGs6.3 IGG, B.T) . nc ccccc ccc cece 19

Vandervoort, Sams, Anderson, Alper

& Post, P.A. v. Vandervoort, 529 F.2d

PN Re es eae 25

vii

620 S.W.2d 104 (Tex. 1981) ........-+-- 25

STATUTES & CONSTITUTION

28 U.S.C. § 636 (1988) ... 6... eee eee eee eens 27

28 U.S.C. § 1254 (1988) ... 2... eee eee eee eee 1

28 U.S.C. § 1738 (1988) ... 6... eee eee eee ees 15

30 U.S.C. § 801 et seg. (1994) .....-- eee ee eeee 7

31 U.S.C. § 3730(b)(4) (1982), amended by

31 U.S.C. § 3730(e)(4) (1994) ........-+-. l

31 U.S.C. § 3730(b) (1994) ... 6. eee eee 3

31 U.S.C. § 3730(e)(4) (1994)... ee eee ees 1

$1 U.S.C. § 3730(h) (1994) . 2... eee ee eee es 18

31 U.S.C. § 3732 (1994) .....- cere eee eres 11

Tex. Gov’t Code Ann. § 24.007

(Vernon 1968) 02... ccc ccccccrsvvces 23

ie Me OP we eS eer eee eer ee 15

EVO.

RULES

POR, Wi Ga Fs RENE ccncecentésetevreens 28

Pa DEO ce cvosecusenesdv ss colnwon 24

. 8 os & SF Pere. were re. Ceres 28

Serer rr rrr tere 1

ee Pere eerie rire rer ee 2

3. SS | Re ree ar re a 2

ap Fhe 8 AR PPV OTerrerr ee to 24

TEXTBOOKS & OTHER

21 Federal Procedure, L. Ed. § 51:188 (1984)... . 25

False Claims Amendments Act of 1986,

Pub. L. No. 99-562, 1986 U.S.C.C.A.N.

ee eles have dewaresve sieve 13-14

1B Moore’s Federal Practice { 412 (1995) ...... 19

Restatement (Second) of Judgments § 12 .... 23-24

Restatement (Second) of Judgments § 24(2)..... 18

Restatement (Second) of Judgments § 51(1)..... 20

JURISDICTION

A final decision was issued by the United States

District Court for the Southern District of Texas on

August 1, 1994, and that decision was affirmed by the

United States Court of Appeals for the Fifth Circuit on

April 28, 1995. United States ex rel. Paul v. Parsons,

Brinkerhoff, Quade & Douglas, Inc., 860 F. Supp. 370

(S.D. Tex. 1994), aff'd without op. 53 F.3d 1282 (Sth

Cir. 1995). Petitioner filed a petition for rehearing

which was denied by the Fifth Circuit on July 10, 1995.

Petitioner then filed the instant Petition for Writ of

Certiorari ("Pet.") within ninety days of that denial.

Accordingly, the petition was filed timely under Rule

13.1 of the Supreme Court Rules. See 28 U.S.C. § 1254

(1988).

Although this Court has jurisdiction to review

this case under Rule 13.1 and 28 U.S.C. § 1254, BMI

continues to assert -- as it did before the district court

and the Fifth Circuit -- that the federal courts lack

subject matter jurisdiction over this case. Briefly,

under the FCA, the federal courts lack jurisdiction over

any cause of action arising prior to 1986 if the "action

is based on evidence or information the Government

had when the action was brought." 31 U.S.C.

§ 3730(b)(4) (1982), amended by 31 U.S.C. § 3730(e)(4)

(1994). For claims arising after 1986, the courts have

no jurisdiction over actions based upon publicly

disclosed allegations or transactions unless the relator

is the "original source" of that information. 31 U.S.C.

§ 3730(e)(4) (1994). As BMI asserted before the lower

courts, Petitioner’s FCA suit contains no information

that the Government did not have when the action was

brought, all of Petitioner’s allegations had been

publicly disclosed when the action was brought and

Petitioner is not an “original source." Consequently,

there is no federal court subject matter jurisdiction

over this action.

PROCEDURAL HISTORY

A. District Court P r

Respondent BMI is a non-profit charitable trust

organized as a non-profit corporation under the laws of

the State of Ohio” Its primary activity is the

performance of research, development, management,

and technical services on a contract basis for industrial,

federal, state, and local governmental clients.

Petitioner Paul is an engineer who, in 1982, worked for

Respondent PB-KBB, one of two companies

constituting a joint venture that was a subcontractor to

BMI. The joint venturers were Respondents PBQD, a

New York corporation, and PB-KBB, a Delaware

corporation.

y In addition to BMI, a listing of the parties in the lower

court proceedings, as required by Rule 14.1(b) of the Supreme

Court Rules, includes: (1) Petitioner Dilip Kumar Paul ("Paul"); (2)

Respondent P.B.-K.B.B., Inc. (“PB-KBB"); and (3) Respondent

Parsons, Brinckerhoff, Quade & Douglas, Inc. (*PBQD"). Pursuant

to Rule 29.1 of the Supreme Court Rules, BMI states that it has

no parent companies, however, it has two non-wholly owned

subsidiaries: (1) Geosafe Corporation; and (2) Research Insurance

Company Limited. Both of these subsidiaries are approximately

99% owned by BMI.

On August 10, 1992, Paul filed a complaint in

the United States District Court for the Southern

District of Texas under the qui tam provisions of the

FCA, 31 U.S.C. § 3730(b) (1994), against PB-KBB and

PBQD. On September 11, 1992, Paul filed a qui tam

complaint against BMI containing virtually identical

allegations. On April 1, 1993, pursuant to 31 U.S.C.

§ 3730(b)(4)(B), the United States filed a Notice of

Election Not to Intervene in this action. On July 14,

1993, the district court ordered the consolidation of

Paul’s complaint against PBQD and PB-KBB with the

action against BMI.

On November 19, 1993, BMI filed a motion to

dismiss Paul’s suit, arguing that Paul’s action should

be dismissed because: (1) the suit was barred by res

judicata; (2) there was no federal court subject matter

jurisdiction; (3) Paul failed to state a cause of action

upon which relief could be granted; and (4) most of

Paul’s action was barred by the statute of limitations.

The district court granted BMI’s motion, finding

that “because Paul could have raised the [FCA]

allegations contained in the complaint when he filed [a]

prior state court action, the principle of res judicata

supports dismissal of his complaint ...." Paul, 860 F.

Supp. at 372. Specifically, in the prior state-court

action, discussed more fully below, Paul brought suit

against PB-KBB in a Texas state court, claiming that

PB-KBB improperly terminated his employment

"because he refused to commit an illegal act." Paul v.

P.B.-K.B.B., Inc., 801 S.W.2d 229, 229 (Tex. App. --

Houston [14th Dist.] 1990, writ denied). Pursuant to

a jury trial, a verdict was returned in favor of PB-KBB,

which was subsequently affirmed. Id. at 230. Based

upon that prior state-court ruling, the district court

concluded that:

{ijn this case, the complaint arose from

the same operative facts that gave rise to

the prior lawsuit. The claims in Paul’s

complaint could have been adjudicated

with the prior lawsuit, forming a

convenient trial unit. [] Paul alleged in

the prior lawsuit that PB-KBB was

engaged in illegal activities and his

failure to participate in these activities

led to his discharge. Paul alleges that

PBQ&D and BMI participated with PB-

KBB in the illegal acts. Although the

complaint asserts a new theory and

measure of recovery, the alleged filing of

false or fraudulent claims, the operative

facts are the same as those in the prior

lawsuit.

Paul, 860 F. Supp. at 374. PB-KBB was dismissed on

the basis of res judicata, and BMI and PBQD, as

privies to PB-KBB for the purpose of the prior state-

court action, were similarly dismissed. Id. at 373.

B. Court Of Appeals Proceedings

On August 30, 1994, Paul filed a notice of appeal

to the United States Court of Appeals for the Fifth

Circuit. Among numerous contentions, Paul primarily

argued that the district court’s ruling was erroneous

because: (1) the prior state-court judgment was not a

"final judgment on the merits" since (a) the Texas state

court lacked subject matter and in personam

jurisdiction over certain purportedly "indispensable

parties" (whom Paul had not joined as defendants) thus

rendering the judgment improper, and (b) according to

Paul, PB-KBB fraudulently obtained the prior state-

court judgment; (2) the res judicata bar is

inappropriate because PBQD, BMI and the United

States were not parties to the state-court action; (3)

the FCA claims and the prior state-court action do not

constitute the same cause of action; and (4) jurisdiction

over FCA suits lies solely in the federal courts and,

therefore, he could not have included his FCA claims

in his prior state-court action.

On April 28, 1995, the Fifth Circuit affirmed the _

district court ruling. United States ex rel, Paul v.

Parsons, Brinkerhoff, Quade & Douglas, Inc., 53 F.3d

1282 (5th Cir. 1995) (unpublished opinion). In an

unpublished opinion, the Fifth Circuit declined to

address Paul’s collateral challenges to the prior state-

court action stated in (1) above, because Paul had

failed to raise those issues in the district court and,

thus, could not raise them for the first time on appeal.

Quade & Douglas, Inc., No. 94-20640, slip op. at 3-4

(5th Cir. Apr. 28, 1995). The court of appeals likewise

declined to address Paul’s argument that because the

United States is a party to his FCA suit but was not a

party to the prior state-court action, there could be no

res judicata because Paul also had not raised this issue

before the district court. Id. The court noted,

however, that "[e]ven if we were to exercise our

discretion to consider this assertion, we would find it

frivolous, because the Government declined to

intervene in this action." ld.

The Fifth Circuit also rejected Paul’s contention

that, because PBQD and BMI were not parties to the

prior state-court action, they could not assert the bar

of res judicata. Id. at 4. Finally, the Fifth Circuit

rejected Paul’s contention that the FCA provides for

exclusive federal court jurisdiction and, therefore,

prohibited Paul from bringing his FCA claims in the

prior state-court action. Id. at 5-6.

Even though there are no conflicting court

decisions with the instant case, there are no important

questions of federal law, and this case involves nothing

more than a routine application of settled, Texas state

law of res judicata, Paul now seeks the grant of

certiorari by this Court, presenting all of the same

arguments considered -- and rejected -- by the Fifth

Circuit.

BACKGROUND FACTS

A. Contract History

From 1965 to the present, BMI has provided

research and development services to the US.

Department of Energy ("DOE") as the contractor

operating the Pacific Northwest Laboratories located in

Richland, Washington. On April 28, 1978, BMI was

assigned responsibility for the management of DOE’s

National Waste Terminal Storage Program. In

particular, BMI was directed to and did establish a new

Project Management Division responsible for

(1) identification of potential sites with salt formations

and/or other geological formations within the United

States suitable for development for potential nuclear

waste repositories, and (2) the coordination and

direction of the development of criteria and specific

technologies required for exploration, design, licensing,

construction, operations, and monitoring of these

repositories.

Effective June 14, 1982, BMI and a joint venture

(comprised of PBQD and PB-KBB) known as Parsons

Brinckerhoff/P.B.-K.B.B. ("PB/PB-KBB") entered into

a subcontract, pursuant to which PB/PB-KBB was to

provide architectural and engineering design services

relating to the construction of exploratory shafts that

would be used to investigate the geological features of

potential nuclear waste disposal sites in salt formations

(the "Subcontract"). On October 7, 1982, DOE

approved the Subcontract.

B. _ Litigation His

Paul was hired by PB-KBB in May 1981. In

June 1982, he was assigned to work on the Exploratory

Shaft Facility design, the project encompassed by the

Subcontract. Paul alleges that he soon concluded the

preliminary design specifications were inconsistent

with requirements under federal mine safety standards.

Paul claims that he informed his supervisors, orally

and in writing, of his concerns. According to Paul,

these acts resulted in his transfer to another division

at PB-KBB and, ultimately -- twelve days after drafting

a memorandum summarizing his concerns -- to his

discharge.

In 1983, Paul brought a Title VII action in the

United States District Court for the Southern District

of Texas against PB-KBB, Civil Action No. H-83-3409,

alleging that he was discharged on the basis of his

national origin. That action was dismissed without

prejudice by stipulation of the parties on June 7, 1984.

Paul then filed an action under the Federal Mine

Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C.

§ 801 et seg. (1994), with the Secretary of Labor,

wherein he argued that, in violation of § 815(c)(1) of

the Mine Act, he was fired because of his safety

complaints. Paul v. P.B.-K.B.B., Inc., 3 MSHC 2006,

2007 (1985). The Secretary of Labor rejected Paul’s

claim. Id. Paul appealed the Secretary’s decision to

the Federal Mine Safety and Health Review

Commission ("the Commission"). [d. at 2008. The

Commission, however, upheld the Secretary’s decision.

Id. Paul then appealed the Commission’s ruling to the

United States Court of Appeals for the District of

Columbia Circuit, which upheld the Secretary. Paul v.

Federal Mine Safety and Health Review Comm’n, 812

F.2d 717, 718 & 720 (D.C. Cir.), cert. denied, 483 U.S.

1023 (1987).

Undeterred, Paul then brought an action in

Texas state court, alleging that he was wrongfully

discharged for his unwillingness to commit a criminal

act. Paul v. P.B-K.B.B., Inc., 801 S.W.2d 229 (Tex.

App. -- Houston [14th Dist.] 1990, writ denied). In

that action, Paul contended that "the preliminary study

[prepared by PB-KBB] called for one shaft rather than

two and that this design 'could’ve killed people.” Id.

at 229. Paul argued that, as the engineer, he would be

called upon to certify the plans and specifications, and

doing so would be a violation of § 22.05 of the Texas

Penal Code which proscribes "reckless conduct." Id.

According to Paul, it was these objections to the

project, that resulted in his termination. Id. at 230.

After trial, the jury found that Paul was not fired

solely because he refused to commit an illegal act. On

appeal, the verdict was affirmed. Id. at 230.

Paul attempted to dress up his losing state-court

action in new federal clothing by filing the instant

action, but the same operative facts underlay both

actions. As in the state-court action, where Paul

argued that the preliminary shaft design was a

violation of applicable safety regulations and "could’ve

killed people," id. at 229-30, Paul bases his FCA suit

upon the same allegations that the design was

“extremely dangerous" and "could kil] people." See

Compl. at 4 5. Further, in the state-court action, Paul

claimed that he was fired in response to "a written

memorandum of objections he leveled at the safety of

the project." Paul, 801 S.W.2d at 230. Similarly, in his

FCA action, Paul contends that he wrote a

memorandum summarizing the "dangerous design

problems," and he was fired. See Compl. at 7.

Accordingly, Paul’s FCA suit is no more than an

attempt to relitigate his prior state-court action.

SUMMARY OF ARGUMENT

Paul’s petition presents two basic issues, neither

of which justifies the issuance of the writ of certiorari.

The first issue is whether state and federal courts have

concurrent jurisdiction over actions brought under the

qui tam provisions of the FCA. Every court to consider

this issue, including the courts below, have concluded

that FCA jurisdiction is concurrent. Furthermore, this

Court has repeatedly held that statutes such as the

FCA, which provide that actions "may be brought” in

the federal courts, do not create exclusive federal court

jurisdiction, unless there is either an unmistakable

implication from the statute’s legislative history that

Congress did not want state courts to exercise

jurisdiction over the federal action or else a clear

incompatibility between state-court jurisdiction and the

federal interest advanced by the statute. No such

factors are present in this case. This issue, therefore,

does not warrant discretionary review by this Court.

Paul’s second issue, the application of the

doctrine of res judicata to the facts of this case,

likewise fails to justify the issuance of the writ of

certiorari. Because the prior judgment was rendered

by a Texas state court, Texas law of res judicata

controls the outcome of this case. In other words, the

lower courts’ legal conclusions on res judicata present

no federal issues. Furthermore, the lower courts

properly applied the facts of this case to the controlling

Texas law. The petition for writ of certiorari should be

denied.

A. State And Federal Courts Have

omy os “emma Act Suit

Paul argues that the lower courts erroneously

ruled that the FCA provides for concurrent federal and

state court jurisdiction. Pet. 7. Besides presenting a

litany of irrelevant constitutional provisions and

caselaw quotations, Paul presents no basis for this

assertion. Instead, the statutory language of the FCA

indicates that there is concurrent federal and state

court jurisdiction over FCA suits. In addition, every

court to consider this issue has agreed that jurisdiction

over FCA actions is concurrent.

In Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

473 (1981), this Court set forth the following rule when

state courts have jurisdiction in cases addressing

federal laws: "state courts may assume subject-matter

jurisdiction over a federal cause of action absent

provision by Congress to the contrary or disabling

incompatibility between the federal claim and state-

court adjudication." Id. at 477-78. In assessing the

issue of concurrent/exclusive jurisdiction, the Court

noted that a court should “begin{] with the

presumption that state courts enjoy concurrent

jurisdiction," and this presumption can be rebutted only

"by an explicit statutory directive, by unmistakable

implication from legislative history, or by a clear

incompatibility between state-court jurisdiction and

federal interests." Id. at 478; see also Tafflin v. Levitt,

493 U.S. 455, 460-61 (1990);

Courtney, 368 U.S. 502, 507-08 (1962).

In United States ex rel, Hartigan v. Palumbo

Bros., Inc., 797 F. Supp. 624, 631-33 (N.D. Ill. 1992),

which was cited by both the district court and the Fift

Circuit in the instant action, the Gulf Offshore-Tafflin

factors were specifically applied to the FCA

jurisdictional analysis. In Hartigan, the court first

reviewed the FCA jurisdictional provision. 31 U.S.C. §

3732 (1994). The court found that the statutory

language -- providing that "[a]ny action under section

3730 may be brought in any judicial district ... ," 31

U.S.C. § 3732 (emphasis added) -~ "is plainly

permissive.” Hartigan, 797 F. Supp. at 631. The

court’s conclusion is supported by the caselaw.

Compare 31 US.C. § 3732 (FCA action "may be

brought in any judicial district ...") with Charles

Dowd Box Co., 368 U.S. at 507 (statute providing that

action "may" be brought in federal court allows for

concurrent jurisdiction between federal and state

courts) and Tafflin, 493 U.S. at 471 (Scalia, J.

concurring) (provisions providing for exclusive

jurisdiction "specifically recite that suit may be brought

‘only’ in federal court" or that jurisdiction shall be

"exclusive").

The court in Hartigan found "no evidence that

Congress addressed or even considered the question of

concurrent state court jurisdiction over FCA claims [or]

that Congress, in its deliberations, affirmatively

intended to confer exclusive jurisdiction over such

claims on the federal courts." Hartigan, 797 F. Supp.

at 632; see also Tafflin, 493 U.S. at 463 ("[L]egislative

silence counsels, if not compels, us to enforce the

presumption of concurrent jurisdiction.").

The court in Hartigan also assessed whether

there was a "clear incompatibility between state-court

jurisdiction and federal interests." Hartigan, 797 F.

Supp. at 632 (quoting Tafflin, 493 U.S. at 461). Such

incompatibility, according to the court, would be

influenced by the following factors: "the desirability of

uniform interpretation, the expertise of federal judges

in federal law, and the assumed greater hospitality of

federal courts to peculiar federal claims." Id. (quoting

Tafflin, 493 U.S. at 464). The court found all of these

factors supported concurrent jurisdiction over FCA

suits. Id. First, because FCA claims are civil and not

criminal, "there is no overriding need for uniform

interpretation." Id.; see also Tafflin, 493 U.S. at 464-65

(finding concurrent jurisdiction over civil RICO actions

“creates no. significant danger of inconsistent

application of federal criminal law"). Second, the court

found that FCA suits are premised upon allegations of

fraud which “are the type of claims over which state

courts presumably have great expertise." Hartigan, 797

F. Supp. at 632; see also Gulf Offshore Co., 453 US. at

484 (recognizing that state-court judges have greater

expertise in adjudicating personal injury and contract

actions). Then, the court rejected the argument that

the FCA’s "procedural mechanisms" support exclusive

federal jurisdiction. Hartigan, 797 F. Supp. at 632; see

also Tafflin, 493 U.S. at 466 ("[W]e have previously

found concurrent state court jurisdiction even where

federal law provided for special procedural mechanisms

similar to those found in RICO."). Finally, the court

noted that concurrent jurisdiction over FCA suits

advances the policies underlying the statute by

encouraging reporting of fraud. Hartigan, 797 F. Supp.

at 632. Consequently, the court ruled that jurisdiction

under the FCA is concurrent. .

Other cases similarly support the finding of

concurrent jurisdiction over FCA suits and,

additionally, the application of the doctrine of res

judicata where the FCA action could have been brought

in a prior state-court action. See Uni

Medical Sch., 1993 U.S. Dist. LEXIS 17306, at *4 (N.D.

Ill. Dec. 7, 1993) (finding "state and federal courts have

concurrent jurisdiction over claims brought under the

([FCA]," and the plaintiff could have brought the FCA

claim with the prior state-court action); see also

ick, 1991

U.S. Dist. LEXIS 418 (N.D. Ill. Jan. 10, 1991)

("Because Robbins could have brought both the FCA

claim and the state claim for medical malpractice in the

same lawsuit, res judicata prevents Robbins from going

forward with this action.").

Despite this caselaw, Paul argues that the

legislative history of the FCA supports exclusive

federal court jurisdiction. Pet. 15-17. In particular,

Paul cites the portion of the Senate Report from the

1986 amendments to the FCA which states that

"{uJnlike most other types of crimes or abuses, fraud

against the Federal Government can be policed by only

one body -- the Federal Government. State and local

law enforcement are normally without jurisdiction

where Federal funds are involved." See False Claims

Amendments Act of 1986, Pub. L. No. 99-562, 1986

U.S.C.C.A.N. (99 Stat.) 5266 at 7. This statement has

nothing to do with the issue of court jurisdiction over

FCA claims, but relates solely to the law enforcement

agencies assigned responsibility for enforcing federal

matters, and the fact that such resources are limited,

requiring the utilization of the FCA’s qui tam

provisions to detect fraud. Indeed, this quotation, read

in context, arguably indicates that Congress supports

concurrent jurisdiction as a further means of

supplementing the limited federal resources to detect

fraud.

Paul then presents two other quotations of

legislative history from the 1986 Amendments -- one

relating to a proposal to permit state and local

governments to join state law claims with FCA actions

brought in federal court and one that would have

provided a uniform federal standard for the

employment of pre-judgment attachment remedies

(rather than following state law standards) under

actions brought by the government. Pet. 16. Neither

of these proposed amendments, however, were

ultimately included in the adopted amendments to the

FCA.

Finally, Paul contends that "there is a clear and

definite incompatibility of [the FCA’s] intent and

states’ interest in the adjudication of the [FCA]." Pet.

17. Without citation, Paul bases this contention upon

the "many state agencies [that] have become

defendants in cases arising out of the [FCA]." Id. at 17.

Essentially, Paul argues that "[t]he states have [a]

conflict-of-interest when adjudicating federal funds." Id.

at 17. Yet, even accepting Paul’s unsupported

assertions that a state court might be hostile to a FCA

suit, the federal government still has the option to

intervene in the litigation and refile it in a federal

court. Consequently, there is no “unmistakable

implication from legislative history" that Congress

intended to divest state courts of concurrent

jurisdiction over FCA suits, Gulf Offshore Co., 453

U.S. at 478, and there is no matter here justifying this

Court’s attention.

Paul argues that the district court and the Fifth

Circuit “erred in their summary rulings that Texas

state laws would govern in deciding the instant case."

Pet. 20. Paul, however, presents no pertinent caselaw

and ignores the established principle -- mandated by

the Full Faith and Credit Clause of the United States

Constitution, U.S. Const. art. IV, § 1, and 28 U.S.C. §

1738 (1988) - that a federal district court "give

preclusive effect to state court judgments whenever the

courts of the State from which the judgments emerged

would do so." Allen v. McCurry, 449 US. 90, 96

(1980); see also Hogue v. Royse City, 939 F.2d 1249,

1252 (5th Cir. 1991) ("In determining whether res

judicata bars [] federal claims as a matter of law, this

Court must give the [Texas] court judgment the same

preclusive effect as would be given that judgment

under Texas law."). Accordingly, both the district court

and the Fifth Circuit properly looked to the law of

Texas in assessing the preclusive effect of the prior

state-court judgment, and there is no issue for this

Court to consider.

Paul contends that the district court and Fifth

Circuit erred in applying the doctrine of res judicata

because "[t]he claims in the instant case were never

litigated and could not be done in the Texas state

court." Pet. 22. The crux of Paul’s argument -- that

his FCA allegations were not litigated in the prior

action -- is irrelevant under the doctrine of res

judicata. Although the doctrine of collateral estoppel

requires that "the facts sought to be litigated in the

second action were fully and fairly litigated in the prior

action," Bonniwell v. Beech Aircraft Corp., 663 S.W.2d

816, 818 (Tex. 1984), the doctrine of res judicata

provides a "bar [to] all claims that were or could have

been advanced in support of the cause of action."

Langston v. Insurance Co. of N. America, 827 F.2d

1044, 1047 (5th Cir. 1987) (emphasis added); see also

Abbott Labs. v. Gravis, 470 S.W.2d 639, 642 (Tex.

1971) ("(T]he rule of res judicata in Texas bars

litigation of all issues connected with a cause of action

or defense which, with the use of diligence, might have

been tried in a former action as well as those which

were actually tried."). The lower courts’ rulings were

premised upon the bar of res judicata, not collateral

estoppel, and Paul’s objection to the application of

Texas res judicata principles must therefore be

rejected.

Paul also attempts to refute the lower courts’

conclusions that Paul’s FCA claims constitute the same

cause of action as the prior state-court action. Pet. 22-

23. Yet, in so doing, Paul presents no law and fails to

address the legal reasoning of either the district court

or the Fifth Circuit. Instead, Paul attempts to

differentiate the instant case by arguing that the FCA

claims occurred through the year 1988, well beyond the

date of his 1982 dismissal. Pet. 22. Further, he

contends that the facts surrounding the FCA claims

occurred in locations other than Houston, Texas, the

location from where Paul was dismissed in 1982. Pet.

19-20 & 22-23. Neither of these contentions, however,

discredit the lower courts’ holdings.

"Under Texas law, an existing final judgment

rendered upon the merits, by a court of competent

jurisdiction is conclusive of the rights of the parties in

all other actions on the points at issue and adjudicated

in the first suit." Hogue, 939 F.2d at 1252. The

decision in the state court was a final judgment on the

merits by a court of competent jurisdiction. See infra

Section E. Accordingly, the issue is whether the

instant action and the prior state-court action

constitute the same cause of action.

"(W]hether two lawsuits constitute ‘different

causes of action' must be an objective determination.

A different cause of action is not merely a different

theory of recovery; it should differ in 'the theories of

recovery, the operative facts, and the measure of

recovery.” i

Dist., 741 F.2d 773, 779 (5th Cir. 1984) (quoting Dobbs

v. Navarro, 506 S.W.2d 671, 673 (Tex. App. -- Houston

[1st Dist.] 1974, no writ)) (emphasis added in Flores).

As the district court below noted, the Texas courts

have adopted the "transactional approach" to analyze

claim preclusion. See j

837 S.W.2d 627, 631 (Tex. 1992). Under the

"transactional approach," "a final judgment on an

action extinguishes the right to bring suit on the

transaction, or series of transactions, out of which the

action arose." Jd. The inquiry requires an evaluation

"as to whether the facts are related in time, space,

origin, or motivation, whether they form a convenient

trial unit, and whether their treatment as a trial unit

conforms to the parties’ expectations or business

understanding or usage." Id. (quoting Restatement

(Second) of Judgments § 24(2) (1982)).

In this case, Paul’s present claim is essentially

based upon the same factual background as his state

wrongful discharge action. Instead of arguing that he

was discharged for unwillingly violating a state statute,

Paul now argues that he was subjected to a retaliatory

discharge under the FCA. 31 U.S.C. § 3730(h) (1994).

The "operative facts" in the instant action are no

different from his state action wherein Paul argued

that he was fired for "refus[al] to commit an illegal

act." Paul, 801 S.W.2d at 229. The central question in

both cases is why was Paul discharged. Moreover,

despite Paul’s attempt to append his discharge claim to

a new, additional theory of recovery -- the alleged filing

of false or fraudulent claims -- the new theory arises

from the same “transaction, or series of transactions"

which led to Paul’s firing, and Paul clearly could have

included that theory in the earlier action. Langston,

827 F.2d at 1047 (noting res judicata "bar[s] all claims

that were or could have been advanced in support of

the cause of action"). Finally, even if the purported

fraud occurred in locations in addition to Houston and

through 1988, Paul still.could have included these

claims with his state-court action, which was tried after

1988. The lower courts, therefore, ruled properly that

Paul’s FCA action is barred because the claims could

have been advanced in a prior action.

D. The Lower Courts Properly Found That

State-Court Action

Paul challenges the rulings of the district court

and the Fifth Circuit, arguing that because BMI, PBQD

and the United States were not parties to the prior

action, res judicata cannot be applied. Pet. 23. Paul,

however, fails to address or even acknowledge the

lower courts’ analyses and conclusions that BMI and

PBQD constitute "privies" of PB-KBB with respect to

the state-court action. Further, Paul’s argument --

raised for the first time on appeal and labelled

"frivolous" by the Fifth Circuit -- that the United States

was not a party to the state-court action ignores that

he was a party to the prior action, he had his day in

court, and he is the party that is barred by the doctrine

of res judicata. The res judicata bar prohibits Paul

from having a second -- or in this case fourth -- day in

court.

1. BMI Is A Privy With PB-KBB

With Regard To The Prior State-

Court Action

While federal res judicata cases distinguish

between concepts of "privity" and "mutuality," see

generally 1B Moore’s Federal Practice { 412 (1995),

Texas law -- which must be applied in this case -- uses

the term "privity" to describe both concepts. "Privity

connotes those who are in law so connected with a

party to the judgment as to have such an identity of

interest that the party to the judgment represented the

same legal right."

Millard, 847 S.W.2d 668, 674 (Tex. App. -- Houston [1st

Dist.] 1993, n.w.h.) (citation omitted). The Texas

courts also have found privity between parties where

one party’s liability is derivative of the other’s. Lemon

v. Spann, 633 S.W.2d 568, 570 (Tex. App. -- Texarkana

1982, writ ref’d n.r.e.) ("[W]Jhere the rights or liabilities

of a party are derivative, a judgment binding a party

from whom the rights or liabilities are derived may be

set up as a bar in a second suit.").

For example, in Soto v. Phillips, 836 S.W.2d 266

(Tex. App. -- San Antonio 1992, writ denied), an

employee who lost a workers’ compensation action

brought a second claim against his employer, the

workers’ compensation carrier and two physicians who

testified at the first state trial. Id. at 267-68. In the

new case, the plaintiff alleged a conspiracy, arguing

that the physicians were paid-off by the other

defendants in exchange for favorable testimony. Id. at

267. The state trial court granted summary judgment

for defendants, and the appeals court affirmed,

concluding that the plaintiff essentially accused the

physicians of "acting in concert with, or being agents

of, the carrier and the employer," and, thus, the

plaintiff was alleging "vicarious liability." Id. at 269.

The court held that "[i]n situations of vicarious liability

... a judgment for one of the persons in the vicarious

relationship bars a later action against the other." Id.

(citing Restatement (Second) of Judgments § 51(1)).

Consequently, the court held that the action was

barred on grounds of res judicata.

In the present case, the lower courts concluded

that BMI was in privity with PB-KBB and, thus, was

entitled to the preclusive effects of the prior state-court

action. These conclusions -- finding privity in a case

alleging derivative or vicarious liability -- is an

appropriate application of Texas law to the facts.

First, PB-KBB was one of the joint venturers to which

BMI subcontracted the design of the exploratory shaft

facility. Second, the gravamen of Paul’s complaint is

that the joint venturers’ work under the Subcontract

was deficient. Third, Paul has specifically alleged in

his complaint that BMI is “vicariously liable" for the

actions of its subcontractor. Fourth, Paul contended

that BMI and PB-KBB engaged in "collusive activities."

Finally, Paul’s allegations against BMI and PB-KBB

are virtually identical. Accordingly, the lower courts’

holdings, that BMI should be given the benefit of

whatever res judicata consequences arise from state-

court action, is correct.

2. The Preclusive Nature Of The

Prior State-Court Action Bind

Paul Because He Was A Party To

That Action

Paul’s assertion that there can be no res judicata

because the United States was not a party to the prior

state-court action is so patently meritless that the Fifth

Circuit labelled it "frivolous." The United States

declined to intervene in this action, and BMI has never

contended that the res judicata bar that impacts Paul

likewise prohibits the United States from pursuing any

claims it may have against Respondents. Instead, the

district court decision is a bar against Paul, who

certainly was a party to the prior state-court action.

Apparently, Paul would like to characterize his action

as one brought by the United States, as if he had no

interest in the litigation. Such an interpretation,

however, is ang to the law. See Eablie lntacent

Sys., 548 F. Supp. 157, 161 (N.D. Ga. 1982) (rejecting

qui tam plaintiff's argument that "the United States is

the true plaintiff" and holding that "the cause of action

brought against defendants ... ‘belongs’ not to the

United States, but to the qui tam plaintiff").

Any other conclusion -- that is, accepting Paul’s

position that his qui tam action cannot be barred by

the doctrine of res judicata -- would permit a plaintiff

to overcome the bar to serial litigation and would be

contrary to those cases that have barred FCA cases

based upon the doctrine of res judicata. See, eg.,

United States ex rel, Hindo v. University of Health

Sciences/The Chicago Medical Sch., 1993 U.S. Dist.

LEXIS 17306, at *6 (N.D. Ill. Dec. 7, 1993) (dismissing

FCA claim on res judicata grounds based on prior

state-court judgment); Robbins on behalf of United

States v. Desnick, 1991 U.S. Dist. LEXIS 418, at *10-

*11(N.D. Ill. Jan. 10, 1991) (dismissing qui tam suit on

res judicata grounds); see also Estate of Menna v. Saint

Agnes Medical Ctr., 1994 U.S. Dist. LEXIS 13693, at

*32 (E.D. Pa. Sept. 22, 1994) (staying federal FCA suit

while state action pending and noting, upon resolution,

state action could constitute res judicata). Accordingly,

Paul’s attempt to overcome the impact of res

by arguing that he has no personal stake in the

litigation has no merit.

E. The Fifth Circuit Properly Declined T

Because Paul did not argue in the district court

that the judgment in the state court was not a final

judgment on the merits, the Fifth Circuit properly

declined to address Paul’s assertions that the state

court lacked jurisdiction over the action and that the

state-court judgment was procured by fraud. Paul, No.

94-20640, slip op. at 3-4; see also In re Grand Jury

Proceedings, 517 F.2d 666, 675 (5th Cir. 1975) (noting

where “argument is raised for the first time on appeal,"

"the point [is considered] waived" and should not be

considered). Where a court of appeals, in its discretion,

declines to consider a matter not raised before the

district court, the Supreme Court should, absent

"exceptional circumstances," not consider the matter.

See Jones v. United States, 362 U.S. 257, 272 (1960);

Lawn v. United States, 355 U.S. 339, 362-63 n.16

(1958). As shown below, Paul’s challenges are patently

without merit and, thus, raise no exceptional matters

warranting this Court’s discretionary consideration of

an initial matter on review. Freytag _v.

issi , 111 S. Ct. 2631,

2639 (1991) (exercising discretion to hear matter where

"faced with a constitutional challenge that is neither

frivolous nor disingenuous").

1 Jurisdiction For Paul’s State-Court

Action Was Properly Vested In

The Texas State Court

The prior state-court action was brought by Paul

in a court of general jurisdiction in Harris County,

Texas. See Tex. Gov't Code Ann. § 24.007

("Jurisdiction") (Vernon 1988). That action concerned

whether, under Texas state law, Paul had been

wrongfully terminated from his employment in PB-

KBB’s Houston, Texas office. Paul], 801 S.W.2d at 229.

Paul, as the plaintiff in that case, chose the forum and

elected to bring the action in Texas state court. There

is no basis upon which Paul can now challenge the

state court’s subject matter jurisdiction over his state

law claim. See generally Restatement (Second) of

Judgments § 12 (1982) (noting that parties are

precluded from litigating a "court’s subject matter

jurisdiction in subsequent litigation [unless] [t]he

subject matter jurisdiction of the action is so plainly

beyond the court’s jurisdiction that its entertaining the

action was a manifest abuse of authority”).

Consequently, Paul’s subject matter jurisdiction attack

is without merit.

Paul still argues that somehow the Texas state

court lacked in personam jurisdiction over certain

"indispensable parties," -- specifically, two "Canadian

domiciled employees" who were “assigned [] Paul’s

work" after Paul’s employment was terminated. Pet. 3,

17-19 & 21-22. Although the true nature of Paul’s

contention is difficult to ascertain, apparently Paul

believes that after his employment was terminated by

PB-KBB, he was replaced by two Canadians, and the

state court did not have in personam jurisdiction over

the two Canadians. Despite Paul’s assertion that these

two individuals are "indispensable parties," Paul never

named them as defendants in the state-court action,

and Paul participated fully in that action, without

raising the issue of joinder of additional parties. Paul

cannot now raise this issue. Pirtle v. Gregory, 629

S.W.2d 919, 920 (Tex. 1982) (noting "parties who

participate in the trial without complaint will not be

heard to complain at the appellate stage" that

additional parties should have been joined).

Moreover, even accepting Paul’s groundless

claim that he was replaced by two Canadians, Paul

puts forth no facts to suggest that indispensable parties

were lacking in the prior Texas state-court action.

Rule 39 of the Texas Rules of Civil Procedure, which

parallels Rule 19 of the Federal Rules of Civil

Procedure, addresses the joinder of indispensable

parties. Tex. R. Civ. P. r. 39 (West 1995); see also Fed.

R. Civ. P. 19. Essentially, the purpose of the federal

and state joinder rules is to ensure that the interests of

all parties to litigation are protected. See generally

Schutten v. Shell Oil Co,, 421 F.2d 869, 873 (5th Cir.

1970); Vondy v. Commissioners Court of Uvalde

County, 620 S.W.2d 104, 106-07 (Tex. 1981). For

example, the right of a defendant not to be subjected to

multiple litigation and potential inconsistent

obligations are central concerns under these rules. Id.;

Schutten, 421 F.2d at 873. Paul has presented no

argument that "the Canadians" had any interest in the

state-court action such that they should have been

joined as parties, and he has not explained how “the

Canadians" could have been liable to Paul under the

applicable state law in that case. Moreover, Paul

presents no evidence that there was any possibility of

inconsistent judgments or that Paul’s rights could not

be fully litigated in the state-court action.

Consequently, Paul’s argument is devoid of merit.

2. TheState-Court Judgment Cannot

Be Collaterally Attacked On The

Basis Of Alleged Fraud

Generally, even if a judgment was obtained by

fraud, that judgment is still res judicata in a

subsequent action, provided the prior court had

jurisdiction to render the judgment. See Vandervoort,

529 F.2d 424, 426 (5th Cir. 1976) (noting that a

“collateral attack on a judgment" based upon fraud is

"irrelevant" once "it [has been] determined that the

court had jurisdiction"); see generally 21 Federal

Procedure, L. Ed. § 51:188 (1984) ("As a general rule,

even a judgment that was obtained by fraud is res

judicata so long as the court rendering it had

jurisdiction to do so."). As discussed above, jurisdiction

in the prior state-court action was properly vested in

the Texas state court.

There is, however, a narrow. exception,

permitting collateral attack on a prior judgment if the

attack is based upon "extrinsic," rather than "intrinsic,"

fraud.

Bank & Trust Co., 382 F. Supp. 956, 963 (S.D. Ga.

1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423

U.S. 864 (1975); Raney v. Mack, 504 S.W.2d 527, 533

(Tex. Civ. App. - Texarkana 1973, no writ).

“{IJntrinsic fraud' [includes] false testimony,

fraudulent instruments, and any fraudulent matter

that was presented and considered in rendering a

judgment." Raney, 504 S.W.2d at 533. By comparison,

"fraud that is extrinsic in its nature, [prevents] one

from having a real contest of the suit based on conduct

or activities outside of the court proceedings

themselves." Fidelity Standard Life Ins. Co., 382 F.

Supp. at 963. Such "extrinsic" fraud "must be collateral

to the matter tried, and not something which was

actually or potentially in issue in the trial." Raney, 504

S.W.2d at 533.

In the instant case, the fraud that Paul claims

occurred in the state-court action consists solely of

allegations of "intrinsic" fraud. Paul contends that in

the state-court proceeding, PB-KBB put forth a

“fraudulent” excuse as to why Paul’s employment had

been terminated. Pet. at 21. Yet, the reason for Paul’s

termination was the exact issue that was before the

court. Paul, 801 S.W.2d at 229. Where the purported

fraud “relates to the material issues in the [] case,"

then the attack on the prior judgment solely involves

“intrinsic” fraud and cannot be the basis for a collateral

attack. Gilbert v. Franklin County Water Dist., 520

S.W.2d 503, 505-06 (Tex. Civ. App. -- Texarkana 1975,

no writ). Because the alleged fraud relates solely to

the issue pending before the court, Paul’s attack on the

prior state-court judgment is devoid of merit.

Il. Paul's Attacks On The Magistrate Judge's

Ruling Raise No Matters Warranting The Grant

Of Certiorari

Paul’s final arguments, that the United States

Magistrate Judge’s involvement was improper, fails to

raise an issue warranting the grant of certiorari.

United States Magistrate Judges are granted authority

to rule on specific civil and criminal motions. See 28

U.S.C. § 636 (1988). For example, under § 636(b)(1)(A),

a magistrate judge may rule on “[a] non-dispositive

pretrial motion such as a discovery motion.” Brown v.

Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir.

1985) (emphasis in original), cert. denied, 479 U.S. 830

(1986). Under this provision, a district court need not

seek the consent of any party to refer the non-

dispositive pretrial motion to the magistrate judge. See

28 U.S.C. § 636(b)(1)(B).

Paul contends that it was error for the

magistrate judge to deny his motion to compel

production of documents because he never consented to

her involvement under § 636(c). Pet. 24. The order

that Paul challenges, however, was a non-dispositive

discovery order for which consent of the parties was

not necessary. See 28 U.S.C. § 636(b)(1)(B). The

magistrate judge did not try the case and, thus, Paul’s

reliance upon § 636(c) (which requires the consent of

parties) is misplaced.

Nevertheless, Paul also claims that the

magistrate judge’s denial of his motion to compel was

arbitrary and did not comply with requirements of

Federal Rules of Civil Procedure 12(b)(6) and 56. Pet.

24. If Paul is attempting to challenge the

appropriateness of the magistrate judge’s ruling, he

should have done so before the district court. Ayala v.

United States, 980 F.2d 1342, 1352 (10th Cir. 1992)

(failure to appeal magistrate judge’s ruling to district

court constitutes a waiver of right to appeal); see also

Good v. Allain, 823 F.2d 64, 66 (5th Cir. 1987). As

with so many other issues, Paul did not raise this

matter before the district court but raised it for the

first time on appeal and, thus, cannot raise it now.

CONCLUSION

The petition for a writ of certiorari should be