thank you and good morning your honor sir may please the court my name is will thomas and i represent the appellant dr christian crypt we individually and on behalf of the united states of america and the apple e wayne state university are before the court this morning on matter surrounding the united states is claims under the false claims act dr kripke claims under the false claims act and dr chris state law clinton's five issues have been raised on appeal but this morning specifically dr koop you would like to focus on three of those issues the first is whether wayne state committee held liable under the false claims act the second issue is whether the board of governors can be held liable under the false claims act and the third is in regards to dr kripke he's retaliating claim under the false claims act and if there is no objection dr kripke you would like to turn the court's attention to the first issue your honors don't judge a book by its cover this idiom teaches us that what is on the surface does not necessarily dictate what lies beneath that is a theme that runs throughout this first issue and for determining whether an entity is a person under the false claims act and can be sued under the false claims act the federal courts of appeal who have addressed how to analyze that question have determined that the  sovereign immunity or arm of the state analysis for each respective circuit is the framework that is used to answer that question is going to be at arm's doing state an arm of the it is not an arm of the state your honor under the  e immunity analysis for this circuit orders orders their money comes their money large of sixty percent of their money comes from their students much like a private university that's funded or the rest of the rest of it comes from the state the minority portion of their financial funding comes from the state and over the last fifteen years the funding from the state has decreased over fifty percent it's no secret one state says it was provided to the district court below that they put this information out that they understand their fiscal reality and it is a crisis for them that the state's appropriations less than less and less and over time they have to find other avenues much like a private university like most of the state universities around the country are facing  i can't speak for every university you're on a but in the state of michigan it is a fiscal reality universities and rutgers that have ever been found not to be a state for purposes of there are a few state schools in pennsylvania who have been found the large majority of state universities when it comes to whether or not they're an arm of the state have been found to be arms of the state going back to your funding is there any difference between going to a situation with that funding and any other school in the state of michigan i can't speak for the university of michigan or there are two actual lawns of universities in michigan michigan michigan state and wayne state are these the much larger upper echelon their funding as a whole has gone down across the board just the fiscal reality of the state of michigan and if we agreed with you with that it would our opinion apply to the university of michigan are you saying there's some special about one state this have a county's name in it i guess the few issues there your honor the named after the county or is it named after matt and wayne county is where wayne state you diversity is located so it's because the location that it's called exactly that's where the city of detroit is located in wayne county the sony and hall opinions as well as every other circuit who's decided it has said when it comes to a unit state university they must be a judge on their own merits every state system is unique and every university within that system is unique it would be unfair to attribute the university of colorado in colorado system with wayne state michigan system by going to the unique way state is unique because it is a nontraditional state university was started as a collection of city colleges that was grouped by the detroit board of education of the fourteen state universities in michigan from what dr perper his research has shown is that it is the only michigan state university that isn't it can't trace its origins back to the state of michigan from where it came does that make any difference it from where it came because if we look at it's under that fourth factor the urns test we look at as to whether or not it's a long held traditional state function is what it's doing in one state started as a group of city colleges in it between one thousand eight universities started as private institutions well there was something that goes if of course they can your honor and but that was one of the things that the fourth circuit noted with regard to workers specifically is it started as private became state and worse then the third circuit sorry your honor and when they  a i mean the us yeah and that's the the genesis or the history tradition and character of the university is simply germane to that fourth factor under ernst in your honor these are these these people are governed by people who are elected in a statewide election they are elected statewide election yes and they serve the locality it's of the university are paid if they're not paid by the university or paid by the state they're actually volunteers the state  statute says that they are to serve on a volunteer basis they receive no compensation from the state that's in general of the university i beg pardon that's in general of the university yes states responsible for them in the  end are you speaking about the board of governors specifically i thought they were the same thing i mean i know you say they're different but it's hard for me to see how they're different on the board as a legal matter the same in any michigan law says the opposite in one state concedes as much in its brief in that there are two controlling cases from the michigan supreme court and from michigan to the court of appeals that said that universities in their governing boards are distinct entities they're not one in the same and that's one of the arguments that when state brought up with regard to the state if the wayne state university as soon as they sue as wayne state university not as the board of governors they can i'm assuming that wayne stage who wants to sue is the entity and pursue it that they can if the board of governors wants to bring a suit on the reasons first it was decided in two thousand which was came before the ernst decision the us decision set the adequate test for determining whether an entity was an arm of the state or person under the false claims act as dr kirk asserts this court sh factors and comanche considers only one sub factor within second factors that disregards the first third and fourth factors and latter opinions that have come after ernst this court has said failure to consider comanche can be distinguished because it didn't take into consider the full scope of factors and that's why comanche wouldn't control in this case in this court would be bound by it  things really weaken your position your honor it they don't weaken our position because we have to take these facts funding and the board of governors and we have to filter them through ernst factors and then the question of the election of the board of governors is it really matched one place or another in the factors that the third factor asks a if there is a governing board and b whether they're appointed by state or local officials now yes there is a controlling board but they are appointed and this court hasn't spoken on as to where does that you know where does the elected board come into play on that third factor but be judged against the fact that wayne state the board the boards are elected statewide and for eleven other universities in the state of michigan the boards are appointed by the governor juxtaposition that taking the power away from the state when it comes to appointing these board members is a strong signal of the state's distance from one state that would be weighed against or does not like the michigan  borders not elected the michigan state board is not i'm sorry the michigan michigan state and wayne state boards are elected by the people the eleven other universities are appointed by the governor and approved by the senate is not unique same as michigan and michigan state in that area it you it is not unique in that regard the it when i was speaking earlier about these two actual on the upper echelon of universities which be michigan michigan state and wayne state on the one hand and the rest on the other but to judge donald finished that question you're not a judge donald it's if the election of the board comes into the fray it would be refined to that third factor only and as dr kirby pointed out the first second and fourth factors weighed against wayne state and  if ultimately this court finds that you know factors weigh in favor and against wayne state as to the question of if they're an arm then we have to go back to the final question or the final kind of tiebreaker so to speak which is the dual reasons under the eleventh amendment for sovereign immunity which is dignity and money dr crippen showed that no the money will not come from the state of michigan any judgment against one state and the dignity of being subjected to a private parties lawsuit is not for i'm not sure that the coverts decision with regard to rocker's actually went in considered the specific monetary issue but it is undisputed as dr p showed that the state of michigan is not legally obligated to pay for this judgment thank you very much please court my name is ken macintyre and i represent wayne state university what i'd like to do with my time if it's agreeable to the court is to respond to several points that brother counsel made and also the cover what i think are the most salient points in the briefing before the court first i'd like to address the issue of whether or not wayne state university is an arm of the state of michigan looking at ernst number one it does not abrogate it does not overrule factors and considerations there is no hard and fast rule that you have to apply all of the factors contained in ernst ertz tells us that the key to in the as to whether or not an entity is an arm of the state is the question of quote whether it most naturally should be characterized as an arm of the state and that the first and foremost test in that analysis of the natural characterization is the question of whether or not there is potential liability on the part of the state for a judgment and against the  key in ernst that the court rejected the concept that in order to find that there is potential liability that there has to be a remedy that there has to be a manner of collecting that there has to be evidence as to how and when it would be done that was the very ruling of the first panel that considered the ernst map which which was the result of dissent and which effectively was overruled by the that wayne state university is a state funded university if you go to sed current sets the question in determining whether or not there is an arm of the state is one of  of reality and the court says it is physical reality that if the state funds an entity and a judgment is entered against that in a t then there is in all likelihood there is a  reality that the state's going to pay for it so that i ask questions a little bit different if i'm concerned about this sort of difference between the board of governors of the university and the university ye there's one state can contract and then he can sue the person it not tracks with right is that all done in the name of the board of governors or is it done in the name of wayne state university and the board of governors is some different entity to answer your question number one the board of governors of wayne state is empowered to sue and be sued number two the general rule of law is that wayne state university is not a in any for purposes of suing or being sued be sued but they can't be sued you say as a practical matter what happens is like what happened will more were a quick false claims claim was brought against the university of michigan was brought in the name it was style robert moore versus the university of michigan and a twelve b six twelve b one motion was brought to dismiss for lack of jurisdiction and the chief judge of the eastern district of michigan ruled that any judgment entered against the university of michigan would be paid out of the treasury noting noting the statute that's the question my answer i'm curious i'm trying to answer believe me are they the same thing or are they something different in terms they are and the same what's they are all over egos of each other if you will the different word for the same thing as far as litigating parties goes as a practical matter yes  practical matter you is a qualification that sort of does away with lancer council as a little matter are they the same thing not as a practical matter yeah you can say when you sue a person when you sue a policeman or city's going to pay for it and therefore it's a practical matter it's the same thing but legally they're different you're i'm not trying to evade or avoid answering your question i know i just want to know i would say this without a lot of research to find out what is the university  there really is nothing that we have found that says oh the university is this that or anything else we've found all kinds of cases where the university is sued and it's treated as a suit against the board and we which makes me wonder that for legal purposes it's just a it's just a formality of how we refer to that entity because it's run by the board it is all a suit against the boarders suit against the university it's the same thing  runs the university no i don't feel it was my understanding which may not be worth a lot but it was my understanding that michigan law does not assign to this university the right to sue sue or be sued but does assign those rights to the board governors that's what the statute says you are i think and the case law says where there is an attempt to draw distinction plaintiff i can elaborate a little bit on plaintiff's argument that there is no case the draws a distinction between a university and its board and says that they are two distinct entities as the plaintiff says in his brief to the contrary all the cases that have been cited have said that a judgment should be entered against the board and there are cases that say that they should be treated as one in the same there are the less plaintive has this this this somewhat tortured strict construction of the word war and he says the university's  a bore only the book comes within the statute therefore it doesn't matter whether the whole house of cards tumbles whether i sue wayne state michigan state any of them well one of the answers is not only as a matter of the analysis that we put forward but in reading his reply brief that goes on with this interpretation there is a canon of construction in the federal courts in the state that you will not strictly construe a terminus statute if it works in absurdity an absurdity is divined defined as something bizarre something that is not in keeping with recently by the michigan supreme court in a case called michigan educational association versus secretary of state if for now a mish one nine four and in that case within the context of what is to be accomplished here the state through its constitution and through myriad logs for all of its universities has set up a scheme a scheme as to how they governed how their board of regents are of elected and how they are paid for and how they run the possibility of a judgment there reimbursed and with this one word play it would so there's another ground to reject this argument of the suit against the president well the suit was ok under the michigan i believe they're the district court a said no false claims act because the university is not a person be a same analysis as applies to eleventh amendment immunity and you find eleventh amendment immunity for the university nowhere nowhere in the body does it explain how we acted individually well then you can say there's not enough complaint you can't say that's an official suit and i saw them individually did they not today not serve him or it hasn't been allowed to they did not is subject to governmental toward munity under the statutes of michigan and we say individuals yes that's what how those suits go under that statute well frank kelly was  to act individually but it was clear he was acting on behalf of the attorney general's office but in the kelly has to be of the suit has is to you can act officially and be sued in your individual capacity we see those cases every day but they have to weigh out facts demonstrating that immunity doesn't apply right but it no answer to say well he was sued in his individual capacity but that he was acting in his of he was acting in his official capacity therefore the so suit in his official capacity that's incoherent their original complaint so alleged facts showing that he was acting as an agent and on behalf of wayne state but i'm saying you can be acting as an agent of the government and be sued in your individual capacity it happens all  the time not for purposes of immunity i'm talking for for purposes of the suit i agree with your honor you can sue anybody in saying or not saying you can sue anybody and you can say anything i'm saying when you sue the secretary of state in her in his official capacity in his individual capacity that just means that if you win you get money out of that person's pocket book but you can still sue you can sue a policeman for instance in his official capacity he's acting in his official capacity many arrests you but you suman his individual capacity it just doesn't answer to say he's acting in his official capacity therefore he sued in his official capacity it doesn't i understand her care i make my point an no longer any federal question at issue in the case the remaining state law claims or state law violations there were these remaining state law claims but there is there did they become thank you in your arms i will be brief just point out a few no it's from brother council's comments first with regard to the first factor about state liability urns does not stand for the proposition that if you get some money from the state the state's going to end up paying for the judgment that this court can read ernst it doesn't say that it's contractual or some sort of legal liability to pay for it there is no state law or no contractual obligation for the state pay for when states fraudulent conduct second brother council stated that there just is no case out there that stands for the proposition that wayne state and its border governors are the same entity but i would point brother counsel in this court to pitch thirty seven point state's response in which they admit that people versus brooks and brandon versus state from the michigan supreme court the michigan court of appeals say exactly that and they repeat that sentiment and as for the last issue dealing that money came from the federal government went into wayne state bank account and because there's no federal law or i'm sorry there's no state law saying that the state of michigan is going to pay for this lawsuit that money or any recovered from this lawsuit will come from only wayne state university's bank account so this has nothing to do it the state in there is no obligation that any of this money will come from that this money is only been from wayne state university and that's the scope of what ernst looks at is whether the state is legally or contractually obligated obligated to pay for this and that isn't present in this case in the last point that was discussed is regarding the amendment the district court only ruled on movements grounds didn't rule on futility grounds and the use the proposed second minute complaint was offered but was never filed or can considered the merits of it were never considered by the district court in the alternative if the court finds that the amendment should have been allowed and we would seek remained for the consideration of the issues concerning appellants proposed second amended complaint thank you will be submitted i believe the other cases are on the briefs so you go ahead and turn the court