## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 18 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DEBRA A. SHAW,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA,

Plaintiff-Appellee, and AAA ENGINEERING & DRAFTING, INC., a Utah corporation; WILBUR L. BRAKHAGE, Supervisor; JANICE KELLIN, Defendants-Appellees. No. 99-6152

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 (Mich eal C. Salem, Norman, Oklahoma, with her on the briefs) for Appellant. Matthew M. Collette, (Douglas N. Letter, with him o n the brief), Appellate Staff, Civil Division, United States Department of Justice , Washington, D.C., for Appellee, United States of America.* Honorable Dale A. Kimball, District Judge, United S tates District Court

for the District of Utah, sitting by designation. -2- John B. Hayes, of Hayes & Magrini, Oklahoma City, O klahoma, for Appellees, AAA Engineering & Drafting, Inc., Wilbur L. Brakhag e and Janice Keelin.

Before HENRY, andMURPHY, Circuit Judges , and KIMBALL, *

MURPHY , Circuit Judge.

I. INTRODUCTION This appeal is from an Order granting the United St ates’ 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 consoli dated 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’ sovereignimmunity in the FCA; and (2) Shaw did not acquire the collection procedures of the U.S. through her status as an FCA relator.1 This court has, in a separate opinion also issued t oday, affirmed the FCA

qui tam and wrongful discharge portions of the judgment. A pendant state law wrongful discharge claim was originally included inthe 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 g arnishment application and did not move to quash the Writ of Garnishment which the district court issued. -3- II. FACTS & PROCEDURAL HISTORY This appeal flows from an underlying lawsuit contai ning both FCA qui tam and wrongful discharge claims brought by Shaw again st AAA Engineering and Drafting, Inc., (“AAA”) and individual defendants W ilbur L. Brakhage and Janice Keelin (collectively “Defendants”). In June 1997, the district court entered judgment according to a jury verdict for Shaw on bo th 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 entitle d. See 31 U.S.C. § 3730(d)(2). The garnishee was the National Imageryand Mapping Agency of the Defense Finance and Accounting Service (“DFAS”), wh ich was believed to owe money to AAA pursuant to various government contrac ts. Shaw also applied for a Writ of Garnishment against the DFAS for her shar e of the qui tam award and for her individual wrongful discharge portion of th e judgment. 2Defendants then3 This court has, in a separate opinion also issued t oday, 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 c ase has been decided, the issue is now moot. -4- applied to the district court for approval of two supersedeasbonds, one for the United States’ and one for Shaw’s claims, and movedthat court to quash both garnishment proceedings. Although the United State s did not object, Shaw argued that the district court should accept Defend ants’ application and quash the Writs only on the condition that Defendants file anapplication for approval of supersedeas bonds simultaneously with any appeal from an antic ipated award of attorney’s fees, litigation expenses, and costs. T he district court, however, approved Defendants’ supersedeasbonds and quashed the garnishment proceedings without imposing the requested conditio n. In March 1998, the district court entered judgment for Shaw on her application for attorney’s fees, litigation expense s, (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 sec ond Writ of Garnishment for the fees and expenses judgment. Th e garnishee was again the4 In her list of issues presented for review, Shaw al so asks this court to

determine her entitlement to fees and expenses incu rred for “collection procedures and any appeal.” [Aplt. Br. at 4] There is no indication, however, that this issue was raised in the proceedings from whichthis appeal is taken. This court will not consider this issue for the first ti me on appeal. See King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1091 n.2 (10th Cir. 1999). -5- DFAS, and the requested garnishment was again for m oney believed to be owed by the United States to AAA pursuant to various gov ernment contracts. This second Writ was entered by the magistrate, but the United States moved to quash the Writ and dismiss the garnishment proceeding. T he government argued the district court lacked subject matter jurisdiction b y 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 th e 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 ar gues that as a qui tam relator she has standing to invoke collection proce dures available to the United States. Finally, Shaw also requests this court to order Defendants to secure the fees and expenses judgment. 4-6-

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 th e Federal Debt Collection Procedures Act (“FDCPA”) is a legal issue of statut ory 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 s hows congressional intent to waive sovereign immunity from FCA-based c ollection 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 FCAsuit, 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 w ho 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-7-

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 ha s not provided this court with an express statutory waiver of sove reign immunity in this case, but merely cites FCA provisions awarding fees and e xpenses against the defendant

. See 31 U.S.C. §§ 3730 (d)(2) & (h). There is no expres s waiver of sovereign immunity in the FCA. Shaw argues (1) the FCA furthers important public p olicies; (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) up on 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 St ates 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 att orney; 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 expen ses against that defendant are exempt, as the government’s application would be, f rom 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 co ntends that these arguments, either separately or combined, amo unt to an implied waiver of sovereign immunity under the FCA. As noted above, however, a waiver of5 Shaw also points out that the United States assiste d her in her first

garnishment proceeding and did not object to her fi rst 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 th e 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 governme nt’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 argum ent, 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- 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 St ates Shaw also argues she has standing to invoke collect ion procedures available to the United States, specifically the right to invoke the FDCPA. See 28 U.S.C. §§ 3001-3308. 6The 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 defi nition 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 FDC PA quickly shows why this argument fails. First, debtis defined in the FDCPA as an amount “owing to the United States.” See id . §§ 3002(3)(A)-(B). The debt at7 Shaw also argues this court should order the UnitedStates to invoke the

FDCPA against Defendants on her behalf. Once again , however, Shaw does not provide this court with a waiver of sovereign immun ity which would allow us to so order. -9- issue in this case is not, however, owing to the Un ited 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 Un ited States” to include “any private attorney authorized by contract made in acc ordance with section 3718 of title 31 to conduct litigation for collection on be half 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 Un ited States” definition in 28 U.S.C. § 3002 cannot be lo gically 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 dis trict 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 district8 Moreover, this court notes that a court cannot force an appellant to post a

supersedeas bond; the court simply denies an appellant’s appli cation 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. -10- court ever ruled on this motion, Shaw also asks thi s court to order Defendants to somehow secure the fees and expenses judgment. Thi s court doubts whether the district court’s Order Quashing the Writ of Garnish ment is a final decision on Shaw’s request to secure the fees and expenses judg ment, 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 b oth the underlying merits judgment and the fees and expenses judgment, the is sue of whether to require Defendants to secure the fees and expenses judgmentpending 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 secon d application for leave to supplement the appendix with the June 8, 1 998 motion and supporting documentation is also denied as moot.-11-

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.