U.S. ex rel. Burlbaw v. Orenduff

Decision Date28 November 2008
Docket NumberNo. 06-2006.,No. 05-2393.,05-2393.,06-2006.
Citation548 F.3d 931
PartiesUNITED STATES ex rel. Edward J. BURLBAW and Donald D. Bustamante, Plaintiffs-Appellants/Cross-Appellees, v. J. Michael ORENDUFF, in his individual capacity; William Conroy, in his individual capacity; Robert E. Weigle, in his individual capacity; Linda Davidson, the Personal Representative of the Estate of Thomas Davidson, in his individual capacity; Donald Birx, in his individual capacity; Miriam A. Gerber Meyer, in her individual capacity, Defendants-Appellees/Cross-Appellants. United States of America, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Duff Westbrook of Sanders & Westbrook, P.C., Albuquerque, NM (Maureen A. Sanders, Sanders & Westbrook, P.C., and Joleen K. Youngers, Almanzar & Youngers, P.A., Las Cruces, NM, with him on the briefs), for Plaintiffs-Appellants/Cross-Appellees.

Kenneth L. Harrigan, Modrall, Sperling Roehl Harris & Sisk, P.A., Albuquerque, NM (Stephen S. Hamilton and Andrew S. Montgomery, Montgomery & Andrews, P.A., Santa Fe, NM; Alex C. Walker, Modrall, Sperling Roehl Harris & Sisk, P.A.; with him on the briefs), for Defendants-Appellees/Cross-Appellants.

Michael S. Raab, Appellate Staff, Civil Division, U.S. Department of Justice, Washington D.C. (Peter D. Keisler, Assistant Attorney General, and David C. Iglesias, United States Attorney, with him on the brief), for the United States of America as amicus curiae.

Before TACHA, TYMKOVICH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Plaintiffs-Appellants Edward Burlbaw and Donald Bustamante ("relators") challenge the district court's grant of summary judgment on their claims under the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-3733. Relators alleged that defendants, past and present high-ranking administrators of New Mexico State University ("NMSU"), falsely certified that NMSU was a "minority institution" eligible for Department of Defense ("DoD") set-aside contract grants. After concluding that qualified immunity was a viable defense under the FCA, the district court granted summary judgment to defendants under the first prong of the qualified immunity test. See United States ex rel. Burlbaw v. Orenduff, 400 F.Supp.2d 1276, 1289 (D.N.M.2005). The district court held that relators failed to put forward evidence from which a reasonable jury could find that defendants violated the FCA.

Defendants timely filed a cross-appeal, but expressly conditioned their request for relief on our resolution of relators' appeal. Specifically, defendants have taken the position that if we affirm the district court's rulings against relators and in their favor, there is no need for us to resolve the issues presented in their appeal.1 They challenge the district court's decision to permit relators to amend their complaint to bring claims against defendants in their individual capacity. Defendants first argue that, pursuant to the logic of Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), state officials are not "persons" within the meaning of § 3729(a) of the FCA. Defendants further contend that the Eleventh Amendment bars these particular individual-capacity claims, since NMSU is the real party in interest.

We AFFIRM the district court's grant of summary judgment in favor of defendants on relators' FCA claims. Like the district court, we hold that relators failed to introduce sufficient evidence for a jury to find that any defendant knowingly misrepresented NMSU's eligibility as a minority institution. Our holding, however, is narrower than that of the district court. Because no reasonable jury could find an FCA violation, we need not decide whether qualified immunity functions as a defense. We also have no need to reach the scabrous issues presented in defendants' conditional cross-appeal, such as whether state officials are "persons" within the meaning of the FCA or whether the Eleventh Amendment bars the instant action against defendants in their individual capacity.


NMSU created a division called the Physical Sciences Laboratory ("PSL"). Between 1993 and 2003, NMSU, through the PSL, applied for and obtained grants and contracts from the DoD under its Historically Black Colleges and Universities/Minority Institutions ("HBCU/MI") contract set-aside program ("DoD set-aside program" or "set-aside program").

A. Statutory and Regulatory Framework

Since 1986, Congress has instructed the DoD to award 5% of certain small-business contracts to "historically Black colleges and universities" and "minority institutions," as the latter is defined in the Higher Education Act of 1965 ("HEA"). See National Defense Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, § 1207(a), 100 Stat. 3816, 3973 (1986) (originally appearing as 10 U.S.C. § 2301 note; repealed and recodified as amended at 10 U.S.C. § 2323 by the National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, § 801(a), (h), 106 Stat. 2315, 2442-45 (1992)). The standards of eligibility for the DoD set-aside program have changed several times since 1986. Prior to 1993, "minority institutions" were eligible for set-aside contracts if they met various requirements prescribed by the Secretary of Education ("SOE") for the Strengthening Institutions Program under Title III of the HEA. See 10 U.S.C. § 2301 note (1988). Under the pre-1993 standards, an educational institution qualified as a "minority institution" if it met the definition of "eligible institution" under 20 U.S.C. § 1058(b)(3)-(5), which covered institutions that, inter alia, retained a 20% enrollment of Mexican American, Puerto Rican, Cuban, or other Hispanic students, or some combination thereof. Id. In practice, the Department of Education ("DoE") provided the DoD with lists of Title III-qualifying institutions with a breakdown of minority enrollment data.

In November 1993, Congress strengthened the criteria for minority-institution eligibility for the DoD set-aside program. See National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, § 811, 107 Stat. 1547, 1702 (1993) (codified at 10 U.S.C. § 2323(a)(1)(C) (1994)). The amended statutory criteria redefined "minority institutions" according to 20 U.S.C. § 1135d-5(3). 10 U.S.C. § 2323(a)(1)(C) (1994). It also grouped "Hispanic-serving institutions," as defined by 20 U.S.C. § 1059c(b)(1), under the heading of "minority institutions." Id.

Under this new criteria, an institution of higher education satisfied the definition of a "minority institution" if, inter alia, it possessed an enrollment of a single minority or a combination of minorities in excess of 50% of the total enrollment. 20 U.S.C. § 1135d-5(3) (1994). An institution was a "Hispanic-serving institution" — hence a "minority institution" — if, inter alia, (1) it possessed an undergraduate full-time enrollment of at least 25% Hispanic students; (2) not less than 50% of its Hispanic students were low-income individuals who were first-generation college students; and (3) another 25% of its Hispanic students were either low-income individuals or first-generation college students. Id. § 1059c(b)(1) (1994).

In October 1998, Congress broadened the eligibility requirements to qualify as a "Hispanic-serving institution." See Higher Education Amendments of 1998, Pub.L. No. 105-244, sec. 501, § 502(a)(5), 112 Stat. 1581, 1767 (1998) (originally codified at 20 U.S.C. § 1101a(a)(5)). Under the 1998 criteria, an institution qualified as a "Hispanic-serving institution" if, inter alia, its enrollment of undergraduate full-time equivalent students was at least 25% Hispanic and it provided assurances that not less than 50% of its Hispanic students were low-income individuals. 20 U.S.C. § 1101a(a)(5) (2000).2

Between 1993 and 2000, the HEA required the SOE to verify minority-institution status from enrollment data furnished by the institution to the DoE. See 20 U.S.C. § 1135d-5(3) (1994) (recodified at 20 U.S.C. § 1067k(3) (2000)). The DoD's regulatory scheme during this time continued to rely on the SOE's verification of minority-institution status for DoD set-aside program eligibility. The DoD permitted applicants, prior to receiving an award under the set-aside program, to evidence their eligibility by showing that "the Secretary of Education has determined the offeror to be a historically black college or university or minority institution." 48 C.F.R. § 252.226-7000(c)(2).

B. Factual History
1. The DoD's Assurances of NMSU's Eligibility

Prior to December 1993, NMSU met the definition of a minority institution under the Strengthening Institutions Program of Title III. The DoE designated NMSU a minority institution under this pre-1993 criteria, thereby making NMSU eligible to apply for DoD set-aside contracts.

In March 1994, the DoD sent the DoE a request for a "list of schools that meet the new minority institution criteria contained in Section 811 of P.L. 103-160, the FY 1994 DoD Authorization Act," including Hispanic-serving institutions. App. at 629. The DoE told the DoD that it publishes a list of "U.S. Accredited Post-secondary Minority Institutions" meeting this statutory criteria (i.e., 20 U.S.C. §§ 1135-5(3), 1059c(b)(1)). Id. at 717. The DoE further explained that this list was the product of a census conducted by the DoE's "Office of Civil Rights, in collaboration with the National Center for Educational Statistics, ... of all universities biannually in even numbered years." Id. This list included NMSU.

On April 1, 1994, the DoD sent NMSU a memorandum attaching the DoE's list. The DoD memorandum stated that this list was effective immediately, and further authorized NMSU to distribute the list "to the appropriate contracting activities." App. at 629. It also stated that an "institution contending that they [sic] meet[s] the eligibility criteria but is not on the list, must contact the Office of Civil...

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