# Amicus Curiae Brief — Wilcox v. United States (No. 07-1336) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1389%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2008 ## Text No. 07-1336 IN THE Supreme Court of the Anited States COLLEEN B. WILCOX, ET AL., Cross-Petitioners, v. - UNITED STATES EX REL. JOHN DAVID STONER, Respondent. On Cross-Petition for a Writ c* Certiorari to the United States Court o: Appeals for the Ninth Circuit MOTION OF NEW MEXICO STATE UNIVERSITY FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF CROSS-PETITIONERS KENNETH L. HARRIGAN Counsel of Record ALEX C. WALKER MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A. 500 Fourth Street NW Albuquerque, NM 87102 (505) 848-1800 Counsel for Amicus Curiae RE EE A ATEN RIMS ee WILSON-EPES PRINTING Co., INC. — (202) 789-0086 — WASHINGTON, D.C. 20002 No. 07-1336 IN THE Supreme Court of the Gnited States COLLEEN B. WILCOX, ET AL., CROSS- PETITIONERS Vv UNITED STATES EX REL. JOHN DAVID STONER ON CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MOTION OF NEW MEXICO STATE UNIVERSITY FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to Supreme Court Rule 37.2, New Mexico State University (““NMSU”) moves for leave to file the attached amicus curiae brief in support of the cross-petition. Cross-Petitioners have consented to the filing of the brief. Petitioner, however, has withheld consent, necessitating this motion. NMSU’s brief is appropriate and will assist the Court in its consideration of this important case. The cross"petition raises a significant question regarding the applicability of the False Claims Act (“FCA”) to ii state employees acting within the scope of their employment. NMSU is an active research university, ranking in the top 110 institutions in the country in terms of federal research expenditures, and is a top Department of Defense contractor among Hispanic serving universities. Four of NMSU’s past Presidents and other NMSU high ievel administrators are currently defendants in their individual capacities in a suit under the FCA concerning their certifications of NMSU as a minority institution in applications for federal set aside contracts. The issue of the applicability of the FCA to state employees acting within the scope of their employment is involved in the cross appeal of that case pending before the Tenth Circuit Court of Appeals. See United States ex rel. Burlbaw v. Orenduff, et al. 10‘ Circuit Nos. 05-2393 and 06- 2006. NMSU and its staff members would be affected if the Ninth Circuit’s flawed decision, in which it dramatically expanded the FCA by holding that state officials are fs“person[s]” subject to gui tam suits under the FCA for actions taken within the course and scope of their employment, is allowed to stand. As explained more fully in NMSU’s brief, the Ninth Cuircuit’s decision ignores the intent of Congress when the FCA was enacted in 1863 and would allow gui tam litigants to do an end run around this Court’s decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765. 120 S.Ct. 1858 (2000). Respectfully submitted, Kenneth L. Harrigan Counsel of Record Alex C. Walker Modrall, Sperling, Roehl, Harris & Sisk, P.A. 500 Fourth Street NW Albuquerque, NM 87102 (505) 848-1800 Counsel for Amicus Curiae iV TABLE OF CONTENTS MOTION OF NEW MEXICO STATE UNIVERSITY FOR LEAVE TO FILE AMICUS CURIAE BRIEF TABLE OF AUTHORITIES INTEREST OF AMICUS CURIAE SUMMARY OF ARGUMENT ARGUMENT I. WHEN CONGRESS ENACTED THE FCA IN 1863, IT DID NOT INTEND FOR STATE OFFICIALS PERFORMING THEIR OFFICIAL DUTIES TO BE SUBJECT TO INDIVIDUAL LIABILITY UNDER THE FCA Il. A QUI TAM SUIT AGAINST INDIVIDUAL STATE EMPLOYEES IS UNJUSTIFIED “END RUN” AROUND STEVENS AND IGNORES THE REAL PARTY IN INTEREST THE STATE EMPLOYER ..... Ill. IF SUIT IS TO BE ALLOWED AT ALL, QUI TAM PLAINTIFFS SHOULD BE REQUIRED TO ALLEGE AND SHOW PERSONAL GAIN BY THE INDIVIDUAL STATE EMPLOYEES Vv TABLE OF CONTENTS — Continued CONCLUSION vi TABLE OF AUTHORITIES Cases Alexander v. Gilmore, 202 F.Supp.2d 478 (E.D. Va 2002) Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, Clinton vs. City of New York, 524 U.S. 417............ 16 Church of Holy Trinity vs. United States, 143 U.S. Dodd v. United States, 545 U.S. 353 ss cin buvievnden ete if Hater vs. Melo, 502 U.S. 21 (1991) Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 memtucer v. Granam, 473: U.S. 159 ...............0000000..5 Lizzi v. Alexander, 255 F.3d 128 (4th Cir. 2001) 10, 11, 15 Monell v. Dept. of Social Services, eG apap tnkaddeasseverscoesve oO, Ld Nev. v. Hicks, 533 U.S. 353 (2001) vil TABLE OF AUTHORITIES Pennhurst State Sch. & Hosp. v. Halderman RT AA ie EU A ghciink badendnsdaied nd enddas veedip ier eersenceetesa 9, 10 Raygor v. University of Minn., 604 N. W.2d 128 Scheuer v. Rhodes, 416 U.S. 232 (1974) Smith v. United States, 287 F.2d 299 (5th Cir. 1961) Taylor v. Phelan, 912 F.2d 429 (10 Cir. 1990) Tenn. V. Davis, 100 U.S. 257 (1880) Terry v. Midwest Refining Co., 64 F.2d 428 (10¢* Cir. 1933) United States v. Borin, 209 F.2d 145 (5t Cir.) ....... 12 United States v. Bornstein, 423 U.S. 303 ................6 United States ex rel Burlbaw v. Orenduff. et al 10‘ Circuit Nos. 05-2393 and 06-2006... ............... United States ex rel. Dunleavy v. County of Delaware, 2000 U.S. Dist. LEXIS 14980 (E.D. ae es Re ee ik a kisi etcetera | TABLE OF AUTHORITIES — Continued PAGE United States ex. rel. Gaudineer & Comito, LLP v. Jjowa HHS, 269 F.3d 932 .. United States ex rel Graber v. City of New York, 4} Supp, Zd d4d (S,D.N_Y, 1998) United States ex vel). Honeywell, Ine. v. San Francisco Housing Authority, et al, 2001 U.S, Dist. LEAS 9743 (ND, Ca, 2001) United States ex rel. Kinney v. Stoltz, No. CIV. O1°1287, 2002 WL 523869 at *7 n. 3 WD. Minn. April 6, 200%) United States v. Lahey Clinic Hosp., Ine., 399 odd 1 Cbs! Cir, 2005) United States v. Mead, 426 ¥.2d 118 (gh Cir, L970). United States ex rel) MeVey v. Board ot Kegents Of University of California, \65 ¥ Supp. 2d 1052 (ND. Cal, 2001) United States v. Silliman, 167 ¥.2d 6GO7 (4d Cir) Vermonl . lvency Ol Natural Kesources v United States ex rel. Stevens, 529 U.S. 765..... Will vo Mich. Dept of State Police, 491 US iX TABLE OF AUTHORITIES — Continued PAGE Wilson v..Graham County Soil and Water Conservation Dist., 224 F.Supp. 2d 1042.. ......... Statutes 28 U.S.C. § 1345 28 U.S.C. § 1367 TEE. © BOIS. nnccsccsccessccesccossecvorsscerssoaveverens 7,9 Other Restatement (3d) Agency § 7-07 No. 07-1336 IN THE Supreme Court of the Anited States COLLEEN B. WILCOX, ET AL., CROSS- PETITIONERS V. UNITED STATES EX REL. JOHN DAVID STONER ON CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF OF NEW MEXICO STATE UNIVERSITY AS AMICUS CURIAE IN SUPPORT OF CROSS PETITION Kenneth L. Harrigan Counsel of Record Alex C. Walker Modrall, Sperling, Rochl, Harris & Sisk, P.A. 500 Fourth Street NW Albuquerque, NM 87102 (505) 848-1800 Counsel for Amicus Curiae 2 INTEREST OF AMICUS CURIAE! New Mexico State University (““NMSU”) is a comprehensive land-grant institution of higher learning, founded in 1888 as an agricultural college and preparatory school, NMSU is dedicated to teaching, research, and service at both the undergraduate and graduate levels. NMSU’s statewide system provides learning opportunities through cooperative extension offices in the 33 New Mexico counties, 13 research and science centers statewide, campuses in Alamogordo, Carlsbad, Dona Ana County, Grants and Las Cruces, an Albuquerque Center and distance education programs. NMSU is a very active research university, with research and public service expenditures exceeding $140 million in 2005-2006. NMSU ranks in the top 110 institutions in the country in terms of federal research expenditures. In addition to its status as a land-grant institution, NMSU also serves as the headquarters for the New Mexico Space Grant Consortium, the New Mexico Water Resources Research Institute, and WERC, a_ statewide consortium for environmental education = and technology development. NMSU is a top USS. Department of Defense contractor among Hispanic: serving universities. NMSU is the only university to reach the platinum, or highest, level of service to | This brief was not authored in whole or in part by counsel for either party. No person or entity other than amicus curiae has made a monetary contribution to the preparation or submission of this brief. 3 NASA’s Space Alliance Technology Outreach Program, which makes the expertise of corporate and university researchers available to small businesses. NMSU has a strong interest in this case. The cross"petition raises a significant question regarding the applicability of the False Claims Act (“FCA”) to state employees acting within the scope of their employment. Given NMSU’s various government contracts, NMSU and its staff members would be affected if the Ninth Circuit's flawed decision, in which .it dramatically expanded the FCA by holding that state officials are “personls]” subject to gui tam suits under the FCA for actions taken within the course and scope of their employment, is allowed to stand. While this Court’s previous decisions have clarified the meaning of “person” under the FCA to exclude states and state employees sued in their “official” capacities, uncertainty remains regarding whether the FCA’s use of “person” encompasses state employees named in their “individual” capacities. This very issue is currently involved in the cross appeal of a case before the Tenth Circuit in which four former Presidents of NMSU and other NMSU high level administrators were sued in_ their “individual capacities” under the FCA in connection with their certifications of NMSU as a minority institution in applications for federal set-aside contracts. See United States ex rel. Burlbaw v. Orenduff et al, 10% Circuit Nos. 05-2393 and 06- 2006. As the Burlbaw cross appeal involves some of the same issues made the subject of the cross- petition, any resolution by this Court of the issues 4 raised in the cross-petition could directly impact the outcome of the Bur/baw matter, not to mention the administration of numerous federal contract and grant programs involving institutions of higher education, ike NMSU. SUMMARY OF ARGUMENT In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 120 S.Ct. 1858 (2000), this Court looked to the intent of Congress when the FCA was enacted in 1863 in concluding that Congress did not intend to include states as “persons” under the FCA. Since Congress did not intend the FCA to include states as “persons” when the FCA was enacted in 1863, then state officials acting within the course and scope of their employment are also not to be considered “persons” subject to suit under the FCA, since there was no recognized distinction in 1863 between “official capacity” and “individual capacity” suits. Moreover, the FCA should not be interpreted in such a way as to authorize a gui tam plaintiff to do indirectly that which he cannot do directly by the simple pleading artifice of labeling the claim as one against the official in his individual capacity. Where the state employee was acting within the course and scope of their employment, basic agency principles dictate that the state is liable for the actions and responsible for any money judgment awarded — which in FCA cases, effectively allowing for a punitive award, can be substantial. Accordingly, a suit against a state employee in his “individual” capacity, albeit for actions taken within the course 5 and scope of his employment, is a suit against the individual state employee in name only, since the real party in interest remains the state entity that employs him. ARGUMENT On April 11, 2000, this Court decided Vermont Agency of Natural Resources v. United States ex rel. Stevens, supra, holding that the FCA does not apply to a state or state agency because states are not “persons” covered by the Act. Jd. at 784-787. A necessary corollary of that decision is that the FCA also does not allow FCA claims against individual governmental employees in their official capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (“Official- capacity suits... ‘generally represent only another way of pleading an action against an entity of which 999 an officer is an agent.”) (quoting Monell v. Dept. of Social Services, 436 U.S. 658, 690, n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)); also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office,” and for this reason “is no different from a suit against the State itself’). Following Stevens, qui tam litigants attempted to evade this Court’s holding by simply recasting what were previously alleged to have been “official” capacity actions as having been taken in the governmental employee’s “individual” capacity. If, as the Ninth Circuit’s decision suggests, qui tam litigants are allowed to circumvent Stevens simply by 6 changing the wording of the caption, this Court’s holding in Stevens is meaningless. I. WHEN CONGRESS ENACTED THE FCA IN 1863, IT DID NOT INTEND FOR STATE OFFICL LS PERFORMING THEIR OFFICIAL DUTIES TO BE SUBJECT TO INDIVIDUAL LIABILITY UNDER THE FCA In Stevens, this Court was asked to determine whether a private individual could bring a gui tam action against a state under the FCA. Stevens, 529 U.S. 765, 768. In answering that question, this Court focused largely on the fact that the FCA was “enacted in 1863 with the principal goal of ‘stopping the massive frauds perpetrated by large [private] contractors during the Civil War.” Jd. at 781 (quoting United States v. Bornstein, 423 U.S. 303, 309, 46 L. Ed. 2d 514, 96 S. Ct. 523 (1976)). The Court then noted that the 1863 version of the FCA “bore no indication that States were subject to its penalties” and that “the text of the original statute does less than nothing to overcome the presumption that States are not covered.” Jd. at 782. The Court went on to note that while “the lability provision of the original FCA has undergone various changes, none of them suggests a broadening of the term ‘person’ to include States.” Jd. at 782. The Court concluded that there was nothing to suggest that Congress, when the act was drafted in 1863, intended to include states as “persons” under the FCA. Under the clear holding of Stevens, the FCA is simply not directed at the conduct of the state. 7 If Congress did not intend the FCA to include states a: “persons” under the FCA in 1863, then it cannot iollow that the same Congress nevertheless intended state officials to be considered “persons.” This conclusion necessarily flows from the fact that, at the time the FCA was enacted in 1863, there was no recognition of separate “official” and “individual” capacities for state officials. Nor did courts recognize that a state official acting within the course and scope of his duties could be held personally lable, since a state could act only through its employees. E.g., Tenn. v. Davis, 100 U.S. 257, 263 (1880) (state “can act only through its officers and agents”). It was not settled until well after the enactment of the FCA in 1863 that state officials could be subject to personal liability. See Ex parte Young, 209 U.S. 123, 159-160 (1908) (settling the issue of 11th Amendment immunity for state officials and holding that, whexe injunctive damages are at issue, a state official violating federal law “is subjected in his person to the consequences of his individual conduct”); also Scheuer v. Rhodes, 416 U.S. 232 (1974) (Congress enacted 42 U.S.C. § 1983 “to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.”) (cited in Hafer v. Melo, 502 U.S. 21, 30°31 (1991) (‘the Eleventh Amendment does not erect a barricr against suits to impose ‘individual and personal liability’ on state officials under § 1983”)). Since Stevens holds that states are not “persons” under the FCA because, at least in part, there is no indication that Congress so intended in 8 1863, then state officials are also not “persons” under the FCA, because there is no indication that Congress understood there to be any such thing as a claim for money damages against a state official (acting within the course and scope of his duties) in his “individual” capacity in 1863. As recognized in United States ex rel. McVey v. Board of Regents of University of California, 165 F Supp.2d 1052 (N.D. Cal. 2001), any other reading of the FCA is in conflict with Stevens. If Congress intended state officials — but not states — to be subject to suit under the FCA (ie., a departure from the status quo as of 1863), it would have said so. It did not, leaving no valid basis for the Ninth Circuit’s departure from the Stevems analysis. Il.