UNITED STATES of America, ex rel., Plaintiff, Margaret A. Newsham; and Martin Overbeek Bloem, Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees, v. LOCKHEED MISSILES & SPACE COMPANY, INC., Defendant-Counter-Claimant-Appellee-Cross-Appellant.
Nos. 97-16704, 98-15111
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 6, 1998. Decided March 24, 1999.
171 F.3d 1208 | 99 Cal. Daily Op. Serv. 2132 | 1999 Daily Journal D.A.R. 2753
BRYAN, District Judge
James J. Gallagher, Martin H. Kresse, Robert S. Brewer, Jr., Barbara J. Bacon, Law Offices of McKenna & Cuneo, Los Angeles, California, for the defendant-counter-claimant-appellee-cross-appellant.
Appeals from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-88-20009-JW.
Before: FLETCHER and TASHIMA, Circuit Judges, and BRYAN,1 District Judge.
BRYAN, District Judge:
OVERVIEW
The appellants, Margaret A. Newsham and Martin Overbeek Bloem (“relators“), are qui tam plaintiffs under the False Claim Act (“FCA“),
We have jurisdiction under
OVERVIEW OF QUI TAM ACTIONS
The FCA has two primary purposes: “to alert the government as early as possible to fraud that is being committed against it and to encourage insiders to come forward with such information where they would otherwise have little incentive to do so.” United States ex rel. Biddle v. Board of Trustees of Stanford Univ., 161 F.3d 533, 538-39 (9th Cir.1998) (citations omitted). The FCA established penalties for the commission of fraudulent acts, recoverable in a civil action known as a “qui tam” action. Id. at 535. The qui tam action is brought by a private individual known as a “relator” on behalf of both himself and the government.
In the 1930s and 1940s, Congress became concerned about the number of parasitic lawsuits copied from preexisting indictments or based upon congressional investigations. Such ill-motivated suits not only diminished the government‘s ultimate recovery without contributing any new information, but the rush to the courthouse put pressure on the government to make hasty decisions regarding whether to prosecute civil actions.
United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 679-80 (D.C.Cir.1997). To address this
problem, Congress placed limitations on the district court‘s jurisdiction, first in 1943, then in 1982, in 31 U.S.C. § 3730(b)(4) (1983) , which stated: “Unless the Government proceeds with the action, the Court shall dismiss the action brought by the person on discovering the action is based on evidence or information the Government had when the action was brought.”
Over time, Congress learned that this restriction essentially eliminated the financial incentive for private citizens to bring fraudulent conduct to the attention of the government, and the use of qui tam suits to fight fraud on behalf of the government dramatically declined. Findley, 105 F.3d at 680. On October 27, 1986, Congress again amended
FACTUAL AND PROCEDURAL BACKGROUND4
Between 1979 and 1988, LMSC had several “cost-reimbursable”5 contracts with various defense and intelligence agencies of the United States government. Newsham worked for LMSC as an analyst in its Sunnyvale, California plant from 1981 until she was discharged in 1984 for making the allegations at issue in this case. Bloem worked at the same facility as a technician from 1979 until his voluntary termination in 1988. The relators here allege that LMSC filed millions of dollars in false claims for excessive non-productive labor costs, including claims for employees’ personal and unrelated business activities and time attributed to “icebox” employees.6 The relators allege that LMSC billed this time to the government as contract labor hours. For example, the relators allege that one manager supervised the construction, by LMSC employees, of a complete airplane for his personal use at government expense.
In March 1984, Ms. Newsham and her attorney contacted agents of the Defense Contract Audit Agency (“DCAA“), which had responsibility for monitoring contract compliance of defense contractors, including LMSC. Ms. Newsham reported her observations, but she was not able to provide details of how time was billed or invoiced by LMSC, or what instructions LMSC employees had regarding the billing of their time.7 Mr. Bloem did not participate in that meeting, but the parties have agreed that his claims were indistinguishable from Ms. Newsham‘s allegations.
On January 8, 1988, the relators filed a qui tam action against LMSC under seal pursuant to the FCA,
Thereafter, LMSC moved to dismiss portions of the complaint for lack of subject matter jurisdiction based on the pre-1986 version of the FCA,
The question of the retroactive or prospective application of the FCA‘s 1986 amendment--
On July 31, 1997, the district court issued its Order Dismissing Case after finding that the government had the information on which the case was based when the action was filed. The complaint was dismissed with prejudice as to the relators, and without prejudice as to the United States. The relators’ motion to amend the complaint was denied. The relators timely appealed these rulings.
On August 22, 1997, after the district court had dismissed the relators’ claims, LMSC filed a Bill of Costs. The district court denied LMSC‘s application for costs, first finding that LMSC was not a “prevailing party.” Thereafter, on December 19, 1997, the district court granted
STANDARD OF REVIEW
The standard of review of the district court‘s order dismissing claims for lack of subject matter jurisdiction is de novo. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1153 (9th Cir.1998). Any findings of fact of the district court are reviewed for clear error. Tucson Airport Author. v. General Dynamics Corp., 136 F.3d 641, 644 (9th Cir.1998). The district court‘s order denying the relators’ motion to strike LMSC‘s counterclaims is reviewed de novo. Harvey‘s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 154 (9th Cir.1992).
The district court‘s denial of costs is reviewed for an abuse of discretion. Crowe v. Wiltel Communications Sys., 103 F.3d 897, 900 (9th Cir.1996). Whether the district court has the authority to award costs, however, is a question of law reviewed de novo. Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir.1998).
DISCUSSION
I. Whether the district court erred by dismissing the relators’ claims based on (a) pre-1986 FCA, and (b) post-1986 FCA after amendment.
The district court failed to distinguish between pre-1986 claims and post-1986 claims, and as a result, the court erroneously dismissed the entire action. The relators’ claims can be divided into two groups: the original claims charging LMSC with billing the government for excessive nonproductive work time before October 27, 1986 (“pre-1986 claims“), and claims that excessive charges continued after 1986, and that LMSC made false statements and misrepresentations to the DCAA auditors (“post-1986 claims“).
A. Pre-1986 claims.
We must first determine which jurisdictional bar to apply to the pre-1986 claims. The Supreme Court in Schumer decided the issue of the retroactive application of the 1986 amendment and held that the 1982 version of the FCA should be applied to conduct that occurred before October 1986. Schumer, 117 S.Ct. at 1876. Recently, in Hughes Aircraft Co., we decided the issue left unresolved by the Schumer decision, that is, “whether the relevant conduct for purposes of non-retroactivity was the act of [the defendant] in presenting a false claim, or the public disclosure of that fact.” 162 F.3d at 1031 (citing Schumer, 117 S.Ct. at 1876 n. 4). When we considered the unfair effect of the retroactive application of the 1986 amendment, that is to “subject [the defendant] to a cause of action that did not exist at the time it engaged in the conduct later made actionable,” we concluded “the crucial event for purposes of non-retroactivity is the alleged presentation by [the defendant] of a false claim, and not the public disclosure of that conduct.” We held that the 1982 version of the FCA applies to all false claims presented before the effective date of the 1986 amendments (October 27, 1986), and that “the 1986 amendment applies to the presentation of false claims after its effective date.” Id. As a result, we apply the 1982 version of the FCA to the relators’ pre-1986 claims, and the post-1986 version to the relators’ post-1986 claims.
The 1982 provision of the FCA,
Here, the relators contacted government officials and reported their observations in 1984, four years before the qui tam action was filed. The DCAA found their information to be sufficient to start an investigation and conducted several audits targeted to respond to the relators’ allegations. While the government decided not to prosecute the relators’ claims, the government had sufficient information on which to base this decision, and possessed that information when the action was brought. There is nothing in the FCA which requires the government to intervene, even if it has sufficient information to justify intervention. We affirm the district court‘s dismissal of the relators’ claims reported before October 1986.
B. Post-1986 claims.
As stated in their proposed amended complaint, the relators’ post-1986 claims fall into two categories: (1) post-1986 continuation of excessive labor bills, and (2) false statements and misrepresentations to DCAA auditors. The relators asserted that they did not learn of the basis for these claims until they conducted discovery after the 1988 filing of the original complaint. Here, the relators argue that the district court erred in its order of dismissal by relying on Schumer because the Schumer decision only addressed pre-1986 amendment conduct.
LMSC makes two principal arguments opposing the relators’ positions. First, LMSC argues that when determining whether subject matter jurisdiction is proper the court must look to the original complaint and should not consider the post-1986 claims brought by the relators in their proposed amended complaint. LMSC cites Morongo Band of Mission Indians v. Cal. St. Bd. of Equal., 858 F.2d 1376, 1376 (9th Cir.1988), for the principle that if the district court had no subject matter jurisdiction over the original complaint, then the court had “no power to do anything with the case except dismiss.” (citations omitted). The Morongo decision goes on to state that, if jurisdiction was lacking, orders issued thereafter are “nullities.” Id. at 1380.
We are not persuaded by this argument. LMSC tested the district court‘s jurisdiction when the complaint was originally filed by making its first motion to dismiss. The district court denied the motion to dismiss based on the case law interpreting and applying the pre-1986 FCA and determined that it had subject matter jurisdiction. The Morongo case dealt with a complaint that did not arise under federal law when originally filed, and over which the district court never had subject matter jurisdiction. See id. at 1380-81, n. 3. Further, as stated in footnote 3,
Second, LMSC continues to maintain that the post-1986 claims are not new claims, but are based on the pre-1986 conduct alleged in the original complaint, and that the district court correctly dismissed them.
The
1. Public Disclosure.
A claim is based on public disclosure when it is based on underlying “information that had been publicly disclosed” (Schumer, 117 S.Ct. at 1876), or “when the claim repeats allegations that have already been disclosed to the public.” Biddle, 161 F.3d at 538.
According to the record before us, the information underlying the relators’ claims that LMSC continued its practice of excessive billing for labor costs after 1986, and that LMSC made false statements to auditors, were first publicly disclosed in the relators’ proposed amended complaint. The relators argue that they did not know the factual basis for these claims until they conducted discovery after filing their original complaint in 1988, which was after the FCA 1986 amendment, and that therefore, there could not have been any disclosure. There is no evidence that these allegations, or the information supporting them, were publicly disclosed at any other time, nor is there evidence that the post-1986 claims were “based upon” the public disclosures of the pre-1986 claims.
2. Original Source.
The statute itself defines an original source as “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.”
We conclude that the district court has subject matter jurisdiction over the relators’ post-1986 claims because they were not previously publicly disclosed and the relators were the original source of the information on which the claims are based. The district court erroneously applied the jurisdictional bar in the pre-1986 FCA, and its dismissal of the post-1986 claims was in error. Further, the district court erroneously denied the relators’ motion to amend their complaint.
II. Whether California‘s Anti-SLAPP law should be applied to the dismissal of LMSC‘s state law counterclaims.
California‘s Anti-SLAPP law,
Section 425.16(a) states its purpose:
The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
Section 425.16(b)(1)10 provides that when a SLAPP suit is filed, it “shall be subject to a special motion to strike,” which is akin to a motion to dismiss. In order to prevail, a citizen party must make a prima facie showing that the SLAPP suit arises from any act by the citizen party “in furtherance of the person‘s right of petition or free speech under the United States or California Constitution in connection with a public issue.”
To address this issue, some additional procedural background is helpful. In June 1991, LMSC filed its counterclaims based on California state law against the relators, alleging breach of duties imposed by fiduciary obligations and loyalty, as well as by contract and statute and the implied
The counterclaims were reinstated on July 14, 1994 based on United States ex rel. Madden v. General Dynamics Corp., 4 F.3d 827, 830 (9th Cir.1993), wherein we held that a qui tam defendant could bring counterclaims for damages independent of a qui tam defendant‘s liability. The relators again moved to dismiss and to strike the counterclaims under both
The relators argue that the district court‘s erroneous refusal to apply the Anti-SLAPP statute denied them of their substantive rights to attorneys’ fees and costs under California state law, and failed to carry out the goals of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
In determining whether the relevant provisions of California‘s Anti-SLAPP statute may properly be applied in federal court, we begin by asking whether such an application would result in a “direct collision” with the Federal Rules. See Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); Olympic Sports Prods., Inc. v. Universal Athletic Sales Co., 760 F.2d 910, 914 (9th Cir.1985). According to LMSC, California‘s statutory regime necessarily collides with
Only two aspects of California‘s Anti-SLAPP statute are at issue: the special motion to strike,
LMSC correctly points out that the Anti-SLAPP statute and the Federal Rules do, in some respects, serve similar purposes, namely the expeditious weeding out of meritless claims before trial. This commonality of purpose, however, does not constitute a “direct collision“--there is no indication that
In the absence of a “direct collision” between a state enactment and the Federal Rules, we must make the “typical, relatively unguided Erie choice.” Hanna v. Plumer, 380 U.S. at 471, 85 S.Ct. 1136; accord 19 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4511, at 311 (2d ed.1996). First, we note that LMSC has not identified any federal interests that would be undermined by application of the anti-SLAPP provisions urged by the relators here. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537-40, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (balancing state and federal interests in deciding whether to apply state law requiring that immunity question must go to judge, rather than jury). On the other hand, as noted earlier, California has articulated the important, substantive state interests furthered by the Anti-SLAPP statute. See
We also conclude that the twin purposes of the Erie rule--“discouragement of forum-shopping and avoidance of inequitable administration of the law“--favor application of California‘s Anti-SLAPP statute in federal cases. Hanna, 380 U.S. at 468, 85 S.Ct. 1136; see also Gasperini, 116 S.Ct. at 2220 n. 8. Although
For these reasons, we hold that the district court erred in finding that subsections (b) and (c) of California‘s Anti-SLAPP statute could not be applied to LMSC‘s counterclaims. Because the district court concluded that the Anti-SLAPP statute was inapplicable, it did not rule on the relators’ motion to strike, nor on their motion for fees and costs. We remand to the district court so that it may rule on these issues.
1. Whether LMSC‘s appeal of the district court‘s application of Fed.R.Civ.P. 54(d)(1) to deny LMSC‘s cost bill is moot.
Because we reverse and remand in part for further proceedings, this litigation is not yet concluded, and it is premature to address costs. LMSC‘s appeal of the district court‘s denial of its costs bill is moot, and should be dismissed.
CONCLUSION
On relators’ appeal, No. 97-16704, we affirm in part and reverse and remand in part for further proceedings. LMSC‘s appeal, No. 98-15111, is dismissed as moot. Relators shall recover their costs on appeal as to both appeals.
No. 98-15111 DISMISSED. No. 97-16704 AFFIRMED in part, REVERSED AND REMANDED in part.