F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 18 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DEBRA A. SHAW,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
No. 99-6152
Plaintiff-Appellee,
and
AAA ENGINEERING & DRAFTING,
INC., a Utah corporation; WILBUR L.
BRAKHAGE, Supervisor; JANICE
KELLIN,
Defendants-Appellees.
Appeal from the United States District Court
for the W. District of Oklahoma
(D.C. No. 95-CV-950-M)
Marilyn D. Barringer, Oklahoma City, Oklahoma (Micheal C. Salem, Norman,
Oklahoma, with her on the briefs) for Appellant.
Matthew M. Collette, (Douglas N. Letter, with him on the brief), Appellate Staff,
Civil Division, United States Department of Justice, Washington, D.C., for
Appellee, United States of America.
John B. Hayes, of Hayes & Magrini, Oklahoma City, Oklahoma, for Appellees,
AAA Engineering & Drafting, Inc., Wilbur L. Brakhage and Janice Keelin.
Before HENRY, and MURPHY, Circuit Judges, and KIMBALL, *
MURPHY, Circuit Judge.
I. INTRODUCTION
This appeal is from an Order granting the United States’ Motion to Quash a
Writ of Garnishment brought by plaintiff-appellant Debra Shaw. The Writ was
for the recovery of a judgment for attorney’s fees, litigation expenses, and costs
awarded after the successful prosecution of consolidated False Claims Act
(“FCA”) qui tam and wrongful discharge actions. See 31 U.S.C. § 3730(d)(2),
(h). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the
order of the district court quashing the Writ. In so doing, we hold that (1)
Congress did not waive the United States’ sovereign immunity in the FCA; and
(2) Shaw did not acquire the collection procedures of the U.S. through her status
as an FCA relator.
*
Honorable Dale A. Kimball, District Judge, United States District Court
for the District of Utah, sitting by designation.
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II. FACTS & PROCEDURAL HISTORY
This appeal flows from an underlying lawsuit containing both FCA qui tam
and wrongful discharge claims brought by Shaw against AAA Engineering and
Drafting, Inc., (“AAA”) and individual defendants Wilbur L. Brakhage and Janice
Keelin (collectively “Defendants”). In June 1997, the district court entered
judgment according to a jury verdict for Shaw on both counts. See 31 U.S.C. §§
3729(a) & 3730(h). Defendants initially appealed that judgment without filing a
supersedeas bond. 1 In October 1997, the United States applied to the district
court for a Writ of Garnishment for the qui tam portion of the judgment, including
that part of the judgment to which Shaw was entitled. See 31 U.S.C. §
3730(d)(2). The garnishee was the National Imagery and Mapping Agency of the
Defense Finance and Accounting Service (“DFAS”), which was believed to owe
money to AAA pursuant to various government contracts. Shaw also applied for
a Writ of Garnishment against the DFAS for her share of the qui tam award and
for her individual wrongful discharge portion of the judgment. 2 Defendants then
1
This court has, in a separate opinion also issued today, affirmed the FCA
qui tam and wrongful discharge portions of the judgment. A pendant state law
wrongful discharge claim was originally included in the underlying suit as well.
Although Shaw had prevailed on the state law claim below, that portion of the
judgment was reversed on appeal. See United States ex rel. Shaw v. AAA
Engineering and Drafting, Inc., __ F.3d __, __, __ (10th Cir. 2000) (“Shaw I”).
2
The United States assisted Shaw with this initial garnishment application
and did not move to quash the Writ of Garnishment which the district court
issued.
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applied to the district court for approval of two supersedeas bonds, one for the
United States’ and one for Shaw’s claims, and moved that court to quash both
garnishment proceedings. Although the United States did not object, Shaw
argued that the district court should accept Defendants’ application and quash the
Writs only on the condition that Defendants file an application for approval of
supersedeas bonds simultaneously with any appeal from an anticipated award of
attorney’s fees, litigation expenses, and costs. The district court, however,
approved Defendants’ supersedeas bonds and quashed the garnishment
proceedings without imposing the requested condition.
In March 1998, the district court entered judgment for Shaw on her
application for attorney’s fees, litigation expenses, (collectively “fees and
expenses”) and costs pursuant to the FCA’s qui tam and wrongful discharge
attorney’s fees provisions. See 31. U.S.C. § 3730(d)(2), (h). Defendants
eventually appealed the fees and expenses judgment without applying for a
supersedeas bond. 3 In June 1998, Shaw filed an application for a second Writ of
Garnishment for the fees and expenses judgment. The garnishee was again the
3
This court has, in a separate opinion also issued today, affirmed the fees
and expenses award. See Shaw v. AAA Engineering & Drafting Co., __ F.3d __,
__ (10th Cir. 2000) (“Shaw II”). In the present appeal, Shaw also asks this court
to order the garnishee, DFAS, to hold in trust amounts owed to AAA pending the
outcome of the fees and expenses appeal. As that case has been decided, the issue
is now moot.
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DFAS, and the requested garnishment was again for money believed to be owed
by the United States to AAA pursuant to various government contracts. This
second Writ was entered by the magistrate, but the United States moved to quash
the Writ and dismiss the garnishment proceeding. The government argued the
district court lacked subject matter jurisdiction by reason of sovereign immunity.
The district court granted the government’s motion. Shaw appeals from this
Order.
III. DISCUSSION
Shaw argues the district court erred in granting the United States’ Motion
to Quash the second Writ of Garnishment because the United States waived
sovereign immunity from garnishment actions under the FCA. Alternatively, if
Congress has not waived sovereign immunity, Shaw argues that as a qui tam
relator she has standing to invoke collection procedures available to the United
States. Finally, Shaw also requests this court to order Defendants to secure the
fees and expenses judgment. 4
In her list of issues presented for review, Shaw also asks this court to
4
determine her entitlement to fees and expenses incurred for “collection
procedures and any appeal.” [Aplt. Br. at 4] There is no indication, however, that
this issue was raised in the proceedings from which this appeal is taken. This
court will not consider this issue for the first time on appeal. See King of the
Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1091 n.2 (10th Cir.
1999).
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A. Standard of Review
This court reviews de novo the district court’s decision that sovereign
immunity has not been waived. See Price v. United States, 7 F.3d 968, 969 (10th
Cir. 1993). Whether Shaw has standing to invoke the Federal Debt Collection
Procedures Act (“FDCPA”) is a legal issue of statutory interpretation which this
court also reviews de novo. See United States v. Phelps, 17 F.3d 1334, 1337
(10th Cir. 1994).
B. Waiver of Sovereign Immunity
Shaw first argues the express language of the FCA shows congressional
intent to waive sovereign immunity from FCA-based collection procedures for
fees and expenses judgments. She cites 31 U.S.C. § 3730(d)(2), which provides
that if the government does not intervene in an FCA suit, the relator is entitled to
a portion of the judgment and “reasonable expenses[,] attorneys’ fees and costs.”
She also cites § 3730(h), which provides that one who is unlawfully terminated
from employment for actions done in the furtherance of the FCA is entitled to
relief, including “litigation costs and reasonable attorneys’ fees.”
“No legal proceeding, including garnishment, may be brought against the
United States absent a waiver of its sovereign immunity.” Millard v. United
States , 916 F.2d 1, 3 (Fed. Cir. 1990) (citing United States v. Mitchell , 445 U.S.
535, 538 (1980)). The waiver must be express in the statutory text. See United
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States v. Nordic Village, Inc. , 503 U.S. 30, 33-34 & 37 (1992); Fostvedt v.
United States , 978 F.2d 1201, 1202-03 (10th Cir. 1992). Shaw has not provided
this court with an express statutory waiver of sovereign immunity in this case,
but merely cites FCA provisions awarding fees and expenses against the
defendant . See 31 U.S.C. §§ 3730 (d)(2) & (h). There is no express waiver of
sovereign immunity in the FCA.
Shaw argues (1) the FCA furthers important public policies; (2) private
individuals have standing to bring FCA qui tam suits because the United States is
the real party in interest in these actions; (3) upon a showing of good cause, the
government may intervene at any point in an FCA qui tam suit, including to
enforce qui tam judgments; (4) privity exists between the United States and an
FCA qui tam relator for res judicata purposes; (5) a recovery of attorney’s fees
under the FCA belongs to the client and not the attorney; and (6) at least one
court has determined that when a qui tam defendant declares bankruptcy, a
relator’s application for attorney’s fees and expenses against that defendant are
exempt, as the government’s application would be, from the Bankruptcy Code’s
automatic stay provisions. See 11 U.S.C. § 362(a), (b)(4); United States ex rel.
Marcus v. NBI, Inc ., 142 B.R. 1, 3-4 (D.C. 1992). Shaw apparently contends that
these arguments, either separately or combined, amount to an implied waiver of
sovereign immunity under the FCA. As noted above, however, a waiver of
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sovereign immunity must be express in a statute and cannot be implied. See
Nordic Village, Inc. , 503 U.S. at 33-34, 37; Fostvedt, 978 F.2d at 1202-03.
Shaw’s arguments simply do not address the necessity of an express waiver of
sovereign immunity under the FCA. 5
C. Collection Procedures Available to the United States
Shaw also argues she has standing to invoke collection procedures
available to the United States, specifically the right to invoke the FDCPA. See
28 U.S.C. §§ 3001-3308. 6
The FDCPA sets forth procedures for the United
States to recover a judgment on a debt. 28 U.S.C. § 3001(a)(1). [Aplt. App. at
33] Shaw argues that she falls under the FDCPA definition for “Counsel for the
United States,” and thus has governmental powers to collect the debt owed Shaw
by Defendants. See 28 U.S.C. § 3002(1)(B). An examination of the FDCPA
quickly shows why this argument fails. First, debt is defined in the FDCPA as an
amount “owing to the United States.” See id. §§ 3002(3)(A)-(B). The debt at
5
Shaw also points out that the United States assisted her in her first
garnishment proceeding and did not object to her first Writ of Garnishment. As
this court has previously noted, however, “neither the government’s attorneys nor
any other officer of the United States may waive the United States’ sovereign
immunity.” United States v. Richman (In re Talbot), 124 F.3d 1201, 1205 (10th
Cir. 1997).
6
Shaw also briefly asserts that she has the government’s common law right
to offset contract debts owed to the United States against contract payments by
the government to the debtor, here AAA. This argument, however, is “developed
so superficially . . . as to waive it.” Franklin Savings Corp. v. United States, 180
F.3d 1124, 1128 n.6 (10th Cir. 1999), cert. denied, 120 S. Ct. 398 (1999).
-8-
issue in this case is not, however, owing to the United States. It is a judgment
for the relator Shaw for her own fees and expenses. See 31 U.S.C. § 3730(d)(2),
(h). Second, the FDCPA defines “Counsel for the United States” to include “any
private attorney authorized by contract made in accordance with section 3718 of
title 31 to conduct litigation for collection on behalf of the United States.” 28
U.S.C. § 3002(1)(B). The referenced section in turn refers to the Attorney
General’s power to contract with private counsel to collect debt owed to the U.S.
government. See 31 U.S.C. § 3718(a) & (b). The “Counsel for the United
States” definition in 28 U.S.C. § 3002 cannot be logically extended to include an
FCA qui tam or wrongful discharge plaintiff seeking to collect attorney’s fees
owed to that plaintiff as an individual. Shaw does not acquire the government’s
standing to assert the FDCPA. 7
D. Order Defendants to Secure the Judgment
On June 8, 1998, after Shaw applied for her second Writ of Garnishment
but before the Writ was quashed, Shaw moved the district court to secure the
March 1998 fees and expenses judgment by directing Defendants to post a
supersedeas bond. Although it does not appear from the record that the district
7
Shaw also argues this court should order the United States to invoke the
FDCPA against Defendants on her behalf. Once again, however, Shaw does not
provide this court with a waiver of sovereign immunity which would allow us to
so order.
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court ever ruled on this motion, Shaw also asks this court to order Defendants to
somehow secure the fees and expenses judgment. This court doubts whether the
district court’s Order Quashing the Writ of Garnishment is a final decision on
Shaw’s request to secure the fees and expenses judgment, and thus we doubt our
subject matter jurisdiction over this issue. See 28 U.S.C. § 1291. We also note,
however, that in light of our decisions affirming both the underlying merits
judgment and the fees and expenses judgment, the issue of whether to require
Defendants to secure the fees and expenses judgment pending appeal is now
moot. 8 See Shaw I , __ F.3d at __; Shaw II , __ F.3d at __; Fed. R. Civ. Pro. 62(a),
(d); see also Franklin Savings Corp. v. United States , 180 F.3d 1124, 1128 n.5,
cert. denied , 120 S. Ct. 398 (1999). Accordingly, Shaw’s second application for
leave to supplement the appendix with the June 8, 1998 motion and supporting
documentation is also denied as moot.
Moreover, this court notes that a court cannot force an appellant to post a
8
supersedeas bond; the court simply denies an appellant’s application for a stay of
execution until a supersedeas bond is given. See Fed. R. Civ. Pro. 62(d). No stay
of execution on the fees and expenses judgment has been granted, and thus
Shaw’s request for a supersedeas bond is misplaced.
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IV. CONCLUSION
For the reasons stated above, this court AFFIRMS the district court’s
Order Quashing the Writ of Garnishment and DISMISSES Shaw’s request that
we order the Defendants to post a supersedeas bond.
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