U.S. v. Anthony
| Decision Date | 09 February 2011 |
| Docket Number | Civil No. CCB–09–356. |
| Citation | 781 F.Supp.2d 257 |
| Parties | UNITED STATES of America, ex rel., Robert S. CONOVERv.Todd M. ANTHONY, et al. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Joseph B. Espo, Brown Goldstein and Levy LLP, Baltimore, MD, for Robert S. Conover.Steven M. Sullivan, State of Maryland, Office of the Attorney General, Baltimore, MD, for Todd M. Anthony, et al.
Robert S. Conover has sued twenty-seven members of the Maryland Air National Guard (“the defendants”) on behalf of the United States government pursuant to the qui tam provision of the False Claims Act (“FCA”), 31 U.S.C. § 3730(b)(1).1 Captain Conover alleges that the defendants submitted false claims for payment to the United States for training missions which they did not complete. Now pending before the court is the defendants' motion to dismiss for lack of subject matter jurisdiction. For the reasons stated below, the defendants' motion will be granted.
Capt. Conover, the qui tam relator, is an officer in the Maryland Air National Guard (“MDANG”) employed as a dual-status technician pursuant to 10 U.S.C. § 10216(a). ( See Compl. ¶ 6.) The defendants also are present or former officers in the MDANG. Capt. Conover's allegations against the defendants arise out of military training flights conducted as part of Inactive Duty for Training by the 104th Fighter Squadron, 175th Wing. The 104th Fighter Squadron is an attack fighter squadron that flies the A–10C, Thunderbolt II, commonly known as the “Warthog.” Although the 104th Fighter Squadron is a unit within the MDANG, it receives federal funds to compensate members of the MDANG for conducting training exercises in accordance with minimum federal guidelines. This training prepares members of the MDANG in case it becomes necessary to activate them to federal duty. In the past decade, the 104th Fighter Squadron has been activated for federal duty and deployed overseas for combat operations on five occasions.
The Air National Guard Instruction 36–2001 (“ANGI 36–2001”) provides federal guidelines for training members of the MDANG. Section 1.3.7 of the ANGI 36–2001 authorizes members of the Air National Guard not in active federal service to perform Inactive Duty for Training (“IDT”) under 32 U.S.C. §§ 502(a)(1) or 502(f). ( See ANGI 36–2001, Relator's Ex. 1.) IDT includes Additional Flying Training Periods (“AFTPs”), which allow fighter pilots, like the defendants, to “achieve and maintain a high level of flight proficiency in order to promote flight safety and improve the readiness posture of the
National Guard].” ( Id. at §§ 1.3.7 and 9.1.) Under the guidelines established in the ANGI 36–2001, a pilot may receive training pay and points credited toward retirement pay for no more than two AFTPs per day. ( Id. at § 9.4.4.) Each AFTP must last at least four hours in duration and include at least one “sortie” (a takeoff and landing). ( Id. § 9.4.5 and 9.4.6.)
On November 2, 2003, several defendants who were Capt. Conover's superior officers confronted him for allegedly claiming payment for completing AFTPs that he did not actually fly. ( See Compl. ¶ 303.) The defendants accused Capt. Conover of submitting false claims for payment and commenced an internal investigation into his conduct. ( Id. at ¶ 304.) During the course of the investigation, which lasted from November 19, 2003 to March 16, 2004, Capt. Conover informed the investigating officer that, since 1999, he had observed other pilots claim payment for flying AFTPs that they had not actually flown. ( Id. at ¶ 305.) Capt. Conover also informed the investigating officer that several pilots had taught him and others this technique to maximize pay without taking leave. ( Id.) The investigating officer subsequently interviewed Richard C. Davison, Robert M. Ginnetti, Richard D. Hunt, and Edward S. Jones, all of whom are defendants in the current action. ( Id. at ¶ 307.) Each of the defendants denied they had ever filed a claim for payment for AFTPs that they did not actually fly, or that they had instructed Capt. Conover on how to do so. ( Id.)
On November 6, 2004, the MDANG notified Capt. Conover that involuntary discharge proceedings had been initiated against him. ( Id. at ¶ 309.) As part of this administrative proceeding, Capt. Conover's attorney requested production of, and was given, NGB Form 105Ms that documented payment claims and AFTO Form 781 s that documented actual flight times for pilots serving in Capt. Conover's squadron, including the defendants in this action. A military tribunal convened from January 12, 2007 through January 14, 2007 to consider the charges against Capt. Conover. The tribunal ultimately cleared Capt. Conover of any misconduct. ( Id. at ¶¶ 321, 324.)
On February 13, 2009, Capt. Conover filed this action under seal, as required by 31 U.S.C. § 3730(b)(2). Capt. Conover alleges that the defendants defrauded the government by: (1) submitting payment claims for AFTPs when they did not actually fly on the specified date, and (2) submitting payment claims for performing two AFTPs in a single day when they completed only one flying AFTP and a short “out-and-back” (when a pilot takes off, flies a short distance, lands for a few minutes, takes off, and then returns to base). 2 On April 20, 2010, the government declined to intervene in the action, and the seal on the case was lifted. On June 24, 2010, the defendants filed a motion to dismiss for lack of subject matter jurisdiction. The relator has opposed the motion.
A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (internal quotations marks and citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347–48 (4th Cir.2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). “Unless ‘the jurisdictional facts are intertwined with the facts central to the merits of the dispute,’ the district court may then go beyond the allegations of the complaint and resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits.” Id. at 348 (quoting Adams, 697 F.2d at 1213). When considering a Rule 12(b)(1) motion, the court should “regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647 (internal quotation marks and citation omitted).
The FCA's intramilitary immunity provision bars a former or present member of the armed forces from asserting a qui tam action against another member of the armed forces if the action arises out of that person's service in the armed forces. See 31 U.S.C. § 3730(e)(1). Because Capt. Conover is a current member of the MDANG, and the defendants are present and former members of the MDANG, the intramilitary immunity provision appears to bar this qui tam action. At least one federal court has held that the statutory language of the FCA's intramilitary immunity clause acts as an “unequivocal bar” against such actions. See United States ex rel. Karr v. Castle, 746 F.Supp. 1231, 1248 (D.Del.1990), withdrawn in part on reconsideration on other grounds.3 The relator nonetheless contends that the FCA's intramilitary immunity provision does not extend to members of the National Guard when they are not in the active service of the United States.4
The intramilitary immunity provision of the FCA states: “No court shall have jurisdiction over an action brought by a former or present member of the armed forces ... against a member of the armed forces arising out of such person's service in the armed forces.” 31 U.S.C. § 3730(e)(1). The FCA fails to provide a definition for the term “armed forces.” See 31 U.S.C. § 3701. The statutory evolution of the FCA, however, sheds some light on the meaning of the term as contemplated by § 3730(e)(1). As the Supreme Court explained in Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), the FCA's initial liability provision applied to “any person not in the military or naval forces of the United States, nor in the militia called into or actually employed in the service of the United States.” 529 U.S. at 782, 120 S.Ct. 1858 (internal quotations omitted) (citing Act of Mar. 2, 1863, ch. 67, § 3, 12 Stat. 698) (emphasis added). Thus, in its initial version, the FCA exempted persons in the militia from liability only when they were called into or employed in the service of the United States. In 1982, Congress replaced the phrase “any person not in the military or naval forces of the United States, nor in the militia called into or actually employed in the service of the United States” with the phrase “[a] person not a member of an armed force of the United States.” See id. (citing 31 U.S.C. § 3729 (1982 ed.)). The Court in Vermont Agency labeled this a “housekeeping change” intended to incorporate the term of art “member of the armed forces” as used in Title 10 of the United States Code. Id. In 1986, Congress replaced the phrase “[a] person not a member of an armed force of the United States” with the term “[a]ny person.” See 31 U.S.C. § 3729(a) 5; see also Vt. Agency, 529 U.S. at 782–83, 120 S.Ct. 1858. In doing so, Congress eliminated the blanket liability exemption for members of the armed forces, permitting an action by the United States. See S.Rep. No. 99–345, at 18 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5283. At the same time, however, Congress included an intramilitary immunity provision in the FCA to bar qui tam actions between members of the armed forces. See 31 U.S.C. § 3730...
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