U.S. ex rel. Totten v. Bombardier Corp.

• Decision Date: 27 March 2001
• Docket Number: No. Civ.A. 98-657(JHG).,Civ.A. 98-657(JHG).
• Citation: 139 F.Supp.2d 50
• Parties: UNITED STATES, ex rel. Edward L. TOTTEN, Plaintiff, v. BOMBARDIER CORPORATION, and Envirovac Inc., Defendants.
• Court: U.S. District Court — District of Columbia

Page 50

139 F.Supp.2d 50

UNITED STATES, ex rel. Edward L. TOTTEN, Plaintiff, v. BOMBARDIER CORPORATION, and Envirovac Inc., Defendants.

No. Civ.A. 98-657(JHG).

United States District Court, District of Columbia.

March 27, 2001.

Herbert Vincent McKnight, Jr., Ashcraft & Gerel, Washington, DC, for Edward L. Totten, United States ex rel., plaintiff.

Aileen Meyer, Donald A. Carr, Winthrop, Stimson, Putnam & Roberts, Washington, DC, Mark R. Hellerer, Pillsbury & Winthrop, LLP, New York City, for Bombardier Corporation, defendant.

Barbara Ann Van Gelder, Wiley, Rein & Fielding, Washington, DC, Paul E. Lehner, Adducci, Dorf, Lehner, Mitchell & Blankenship, P.C., Chicago, IL, for Envirovac, Inc, defendant.

Keith V. Morgan, U.S. Attorney's Office, Washington, DC, for United States of America, non party.

ORDER

JOYCE HENS GREEN, District Judge.

On March 16, 1998, Edward L. Totten ("Totten") brought a qui tam action under the False Claims Act ("FCA" or "Act"), 31 U.S.C. § 3729 et. seq., against Bombardier Corporation ("Bombardier") and Envirovac, Inc. ("Envirovac"). On December 15, 1999, the government declined to intervene in the case. Currently pending are motions to dismiss by both of the defendants, in which they argue that this Court lacks subject matter jurisdiction, that Totten has failed to state a claim, that Totten has failed to plead fraud with the required particularity, and that some of Totten's claims are barred by the statute of limitations. For the reasons set forth below, the Court finds that Totten has failed to state a claim, and the complaint is dismissed in its entirety.

I. Background

In considering a motion to dismiss, the Court must accept the factual allegations contained in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. The complaint may be dismissed only if the plaintiff can prove no set of facts consistent with his allegations which would entitle him to relief. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Totten was formerly employed by the National Railroad Passenger Corporation ("Amtrak"). Bombardier has contracted with Amtrak to manufacture passenger rail cars. Envirovac manufactures toilet systems, and contracts with both Amtrak and Bombardier to provide toilet systems for passenger rail cars. Amtrak has delineated requirements for its toilet waste systems, which are contained in Specification 598. These specifications are incorporated into Amtrak's contracts with Bombardier and Envirovac.

Totten states that Envirovac and Bombardier supplied Amtrak with toilet systems that did not meet the requirements of Specification 598, and eventually had to be repaired or upgraded. Totten further alleges that the defendants were aware of the defects in their products, and that they made false statements to Amtrak that the products met all requirements and specifications.

The False Claims Act creates liability for any person who knowingly presents to the government a false or fraudulent claim for payment. 31 U.S.C. § 3729(a)(1). In 1986 Congress amended the Act by expanding the definition of "claim" to include requests "made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded." 31 U.S.C. § 3729(c). Private individuals may bring a qui tam civil action for a violation of section 3729, on behalf of themselves and the government. 31 U.S.C. § 3730(b). The instant complaint alleges that the defendants knowingly made false claims against Amtrak, and that both Amtrak and the United States Government were damaged as a result. The complaint does not articulate any theory as to why a false claim against Amtrak would constitute a false claim against the government.

II. Analysis

The defendants correctly assert that Amtrak is not part of the government. Amtrak "is not a department, agency, or instrumentality of the United States Government." 49 U.S.C. § 24301(a)(3); see also Lebron v. Nat'l Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (holding that Congress does not have the authority to determine Amtrak's status for Constitutional purposes, but noting that a statutory declaration of Amtrak's status would be dispositive as to matters within Congress' control). An assertion that the defendants presented false claims to Amtrak is therefore not, by itself, a sufficient allegation of a false claim under the Act.

A. 31 U.S.C. § 3729(c)

In his opposition, Totten responds that a false claim need not be presented directly to the government, and cites to the expanded definition of "claim" found in section 3729(c), which includes requests made to grantees or other recipients of federal funds. The Complaint does not include any allegations regarding Amtrak's status as a contractor or grantee, nor does it specifically allege that the government either provided Amtrak with, or reimbursed Amtrak for, any funds connected with the alleged false claims. As such, the complaint fails to state a claim. Ordinarily the Court might permit Totten to amend the complaint, because it is possible that a heavily government funded entity, such as Amtrak, might qualify as a grantee under Section 3729(c). See United States ex rel. Yesudian v. Howard University, 153 F.3d 731 (D.C.Cir.1998).¹ However, the defendants have raised a threshold issue which obviates the need to determine whether Amtrak's government funding could bring it within the scope of section 3729(c).

B. 49 U.S.C. § 24301(a)(3)

The same provision in Amtrak's authorizing statute which establishes that Amtrak "is not a department, agency, or instrumentality of the United States Government" declares that Amtrak "shall not be subject to title 31." 49 U.S.C. § 24301(a). The defendants argue that as a result, the False Claims Act, which is part of title 31, simply does not apply to Amtrak. As a result, the Act's definition of "claim" could not apply to requests made to Amtrak, and the Court would not be permitted to consider whether or not Amtrak's government funding makes it a "contractor, grantee, or other recipient." Totten counters that his complaint does not "subject" Amtrak to anything at all, including title 31.

Title 31 occupies two volumes of the United States Code, and includes chapters which, among other things, establish the organization and procedures of the Department of the Treasury, General Accounting Office and Office of Management and Budget, and establish procedures and requirements for appropriations, the financial management of the federal government, the monetary system, government contracts and grants, and government corporations, including mixed-ownership corporations. 31 U.S.C. §§ 1 - 9702. Title 31 is primarily concerned with government entities, however, portions of it regulate private recipients of government funding. See, e.g., 31 U.S.C. § 1352 (restrictions and reporting requirements on lobbying by recipients of federal contracts, grants, or loans). Interpretation of a statute begins with its plain meaning, despite the fact that removing Amtrak from the reach of title 31 could have potentially sweeping consequences. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); ITT World Comm., Inc. v. FCC, 725 F.2d 732, 743 (D.C.Cir.1984). However, the words "subject to" leave some room for interpretation. A close examination of the language at issue and an exploration of the circumstances, context, and history of the enactment of the provision in question is in order.

i. "Subject to"

Black's Law Dictionary defines "subject to" as "liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for." Black's Law Dictionary 1278 (5th ed.1979). For this case, the most pertinent of these definitions is "governed or affected by." In order for Totten to effectively state a claim, would the Court be compelled to interpret the False Claims Act in a manner which would cause that Act to "govern or affect" Amtrak?

The False Claims Act protects the government by safeguarding government funds from fraud. Section 3729(c) amends the FCA so that government funds which have passed through to a recipient remain protected against a third party's fraud against that recipient. The FCA thus confers a benefit on those recipients. The protection that the FCA provides might also be seen as a burden, although perhaps indirectly. In this case, Totten's action under the FCA would subject Amtrak's business transactions to the restrictions of the FCA, and Amtrak's business partners to the penalties which ensure compliance with those restrictions. If Amtrak is not "subject to" the FCA, the plaintiff may not bring a claim which relies on Amtrak's receipt of the benefits and burdens imposed by the FCA.

ii. Legislative History of the Amtrak Reform and Accountability Act

An examination of the legislative history does not shed any more light on the meaning of the words "subject to," but does suggest that preventing the treatment of Amtrak as a grantee or recipient under the FCA would be in keeping with Congress' overall intent.

Congress amended Amtrak's authorizing statute with the Amtrak Reform and Accountability Act of 1997 ("Reform Act"). Pub.L. No. 105-134, 111 Stat. 2570. The overarching purpose of the Reform Act was to authorize appropriations for Amtrak while overhauling its authorizing statute, reducing costs, reducing federal involvement, and, ultimately, eliminating Amtrak's reliance on federal assistance. See id. at 13, 15; S.Rep. 105-85 at 1 (1997). The Reform Act was designed to allow Amtrak to "operate as much like a...