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United States ex rel. Cain v. Salish Kootenai College, Inc.

United States Court of Appeals, Ninth Circuit

July 10, 2017

United States ex rel. Fawn Cain; Tanya Archer, Relator; Sandi Ovitt, Relator, Plaintiffs-Appellants,
v.
Salish Kootenai College, Inc.; Salish Kootenai College Foundation; Robert Fouty; Jim Durglo; Rene Peirre; Ellen Swaney; Linden Plant; Tome Acevedo; Zane Kelly; Ernest Moran; Salish Kootenai College Board of Directors; Does, 1-10, Defendants-Appellees, Confederated Salish and Kootenai Tribes, Appellee-Intervenor.

          Argued and Submitted April 3, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Montana, D.C. No. 9:12-cv-00181-BMM Brian M. Morris, District Judge, Presiding

          Trent N. Baker (argued), Jason A. Williams, and David B. Cotner, Datsopoulos MacDonald & Lind P.C., Missoula, Montana, for Plaintiffs-Appellants.

          Martin S. King (argued), Jori Quinlan, and Matthew J. Cuffe, Worden Thane P.C., Missoula, Montana, for Defendants-Appellees.

          John Harrison (argued) and Rhonda R. Swaney, Tribal Legal Department, Pablo, Montana, for Appellee-Intervenor.

          Before: Alex Kozinski and William A. Fletcher, Circuit Judges, and John R. Tunheim, [*] Chief District Judge.

         SUMMARY[**]

         False Claims Act

         The panel reversed the district court's dismissal of the complaint in a qui tam action brought by former employees of Salish Kootenai College, Inc., alleging that the College violated the False Claims Act by knowingly providing false progress reports on students in order to keep grant monies coming from the Department of Health and Human Services and the Indian Health Service.

         The False Claims Act permits suits against any "person" who defrauds the government by knowingly presenting a false or fraudulent claim.

         The district court held that the College was an arm of the Confederated Salish Kootenai Tribes ("Tribe") that shared the Tribe's sovereign immunity.

         The panel held that Indian tribes were entitled to the same interpretative presumption as States, which are excluded from the term "person" under the False Claims Act. The panel concluded that the Tribe, like other federally recognized Indian tribes, was presumptively excluded from the term "person."

         Turning to the question whether the College functioned as an arm of the Tribe and thereby shared the Tribe's sovereign status, the panel held that the proper standard for answering the question was the test in White v. University of California, 765 F.3d 1010, 1025 (9th Cir. 2014). The panel remanded so that the district court could apply the White factors. The panel also directed the district court to allow appropriate discovery before determining whether the College was an arm of the Tribe under White.

          OPINION

          KOZINSKI, Circuit Judge.

         The False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, permits suits against "any person" who defrauds the government by "knowingly present[ing] . . . a false or fraudulent claim for payment or approval." Id. ยง 3729(a)(1)(A). We consider whether Salish Kootenai ...


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