United States ex rel. Fawn Cain; Tanya Archer, Relator; Sandi Ovitt, Relator, Plaintiffs-Appellants,
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.
and Submitted April 3, 2017 Seattle, Washington
from the United States District Court for the District of
Montana, D.C. No. 9:12-cv-00181-BMM Brian M. Morris, District
N. Baker (argued), Jason A. Williams, and David B. Cotner,
Datsopoulos MacDonald & Lind P.C., Missoula, Montana, for
S. King (argued), Jori Quinlan, and Matthew J. Cuffe, Worden
Thane P.C., Missoula, Montana, for Defendants-Appellees.
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.
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.
False Claims Act permits suits against any "person"
who defrauds the government by knowingly presenting a false
or fraudulent claim.
district court held that the College was an arm of the
Confederated Salish Kootenai Tribes ("Tribe") that
shared the Tribe's sovereign immunity.
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
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
KOZINSKI, Circuit Judge.
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.
§ 3729(a)(1)(A). We consider whether Salish Kootenai