* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10958

United States of America, ex rel 

SUSAN HEATH

Plaintiff-Appellant

v.

DALLAS-FORT WORTH INTERNATIONAL AIRPORT BOARD

Defendant-Appellee

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:99-CV-100

Before JOLLY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Susan Heath, acting as a whistleblower, brought this

action on behalf of the United States under the qui tam provision of the False

Claims Act(“FCA”), 31 U.S.C. § 3730(b). She alleged that the Dallas Fort-Worth

International Airport Board (“DFW”), acting through its personnel, made false

statements relating to environmental matters and submitted false claims in

United States Court of Appeals

Fifth Circuit

F I L E D

December 27, 2007

Charles R. Fulbruge III

Clerk
No. 06-10958

2

order to receive funding from the Federal Aviation Administration (“FAA”) for

various projects at DFW Airport. The case went to trial, the jury found against

Heath and the district court entered judgment in favor of DFW. Heath appeals,

citing mistakes in the district court’s evidentiary rulings and in its instructions

to the jury. We find no reversible error and AFFIRM.

From March 1996 to August 2000, Susan Heath worked as an

environmental scientist in DFW’s Environmental Affairs Department. While

employed by DFW, Heath became convinced that DFW had applied for and

received grants between 1993 and 1999 from the FAA while falsely certifying

compliance with federal environmental laws and regulations. The grants

received by DFW totaled approximately $156 million.

In January 1999, Heath filed this qui tam action, claiming that DFW had

submitted false statements relating to environmental issues to obtain grant

funds in violation of the FCA, 31 U.S.C. § 3729(a)(1). 

The case proceeded to trial in July 2006 and was ultimately submitted to

a jury. In response to Question No. 1, which asked whether DFW knowingly

presented false and fraudulent claims to the FAA, the jury answered “no” as to

each of the grants at issue. The jury did not answer the remaining questions,

nor did it need to. Based on the jury’s verdict, the court entered judgment for

DFW. Heath now appeals.

Heath first argues that the district court abused its discretion by allowing

DFW to repeatedly argue and elicit certain testimony regarding the FAA’s

disinterest or inaction in response to Heath’s FCA claims that DFW had

submitted false statements in seeking FAA grants. The parties dispute the

appropriate characterization of the evidence of FAA inaction actually presented

before the district court. Heath asserts that DFW argued that the FAA was

authorized to but did not intervene in or bring the FCA suit, when under the

FCA no such authorization exists; and that the FAA was authorized to but did
No. 06-10958

3

not bring a formal administrative proceeding to recover the grantfunds atissue,

when under the FCA the agency could not have pursued administrative

remedies while Heath’s qui tam action was pending. DFW, in contrast, asserts

that it argued only that the FAA never said it believed DFW had lied or cheated,

never asked DFW to return the grant funds, and never cut off any future grant

funds to DFW. 

Evidentiary rulings are reviewed for abuse of discretion, and this review

is subject to harmless error analysis. United States v. Cantu, 167 F.3d 198, 203

(5th Cir. 1999).

As we noted, the parties dispute the appropriate characterization of the

evidence of FAA inaction actually presented before the district court. Our review

of the record leads us to conclude that, at best, it is only true that DFW vaguely

referenced the allegedly inappropriate arguments that Heath presents to this

court. Conversely, it is at least arguably true, as DFW claims, that DFW never

argued either that the FAA was authorized to but did not intervene in or bring

the FCA suit, or that the FAA was authorized to but did not bring a formal

administrative proceeding to recover the grant funds at issue. Moreover, to the

extent that DFW’s vague references to the FAA’s inaction approached the

allegedly impermissible topics, Heath did present some evidence, and was free

to present available and admissible evidence, including FAA witnesses, that

would have rebutted any prejudicial effect of these references. Indeed, during

closing arguments, Heath’s counsel argued that the government’s inaction with

respect to her claims indicated that her case had merit. She argued that “the

Justice Department at any time could have stepped in here and stopped this case

in the last seven years since it’s been around. Any time. They have not.” In any

event, our study of the record indicates that these vaguely impermissible

references had no detectable effect on Heath’s ability to fairly present her case

to the jury. We therefore hold that, even if the district court abused its
No. 06-10958

1 We do not decide whether an agency can pursue an administrative remedy while a

qui tam action is pending.

4

discretion in admitting the evidence and allowing the argument on the specific

two matters presented on appeal, such errors, if errors they be, could not

reasonably be said to have prejudiced Heath’s case when she had ample

opportunity to rebut the evidence and argument. Such alleged errors are

therefore not grounds for reversing the jury’s verdict and the district court’s

judgment. 

Heath also argues that the district court abused its discretion by refusing

to submit her requested jury instructions. This issue is in essence an extension

of the subject we have just addressed. Heath asserts that her jury instructions

were “proffered to ameliorate the harm resulting from DFW’s recurring

invitation to the jury to draw improper inferences from the FAA’s inaction

regarding the grants.” These “improper inferences,” Heath asserts, were that

the FAA was authorized to but did not intervene in or bring the FCA suit, when

under the FCA no such authorization exists; and that the FAA was authorized

to but did not bring a formal administrative proceeding to recover the grant

funds at issue, when under the FCA the agency could not have pursued

administrative remedies while Heath’s qui tam action was pending.1

We review challenges to jury instructions for abuse of discretion. Brown

v. Parker Drilling Offshore Corp., 410 F.3d 166, 179 (5th Cir. 2005). A judgment

should be reversed only if the charge as a whole creates a substantial doubt as

to whether the jury has been properly guided in its deliberations. Id. Moreover,

“even if the jury instructions were erroneous, we will not reverse if we

determine, based upon the entire record, that the challenged instructions could

not have affected the outcome of the case.” Fed. Deposit Ins. Co. v. Mijalis, 15

F.3d 1314, 1318 (5th Cir. 1994). In sum, trial courts have substantial latitude

in formulating jury instructions. Id.
No. 06-10958

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First, it is clear to us that the district court’s jury instructions

substantially covered the content of the proposed charge. The district court’s

charge indicated that the Attorney General is the only government official who

can bring an FCA action and the only government official who can move to

dismiss an FCA action. This instruction sufficiently told the jury that the

Attorney General, and not the FAA, was responsible for the government’s

decisions regarding Heath’s FCA claims. Second, it is also clear to us that the

district court’s instructions did not affect the outcome of the case. Taken

together, the trial, the district court’s charge, and closing arguments laid Heath’s

case squarely before the jury. For these reasons, we hold that the district court

committed no reversible error by failing to submit Heath’s requested jury

instructions.

In sum, the district court’s admission of the complained of argument and

evidence is not reversible error, as it is arguably true that DFW never broached

the allegedly impermissible topics, and as Heath was free to and did attempt to

rebut the effect of the admitted evidence. Moreover, the district court did not

abuse its discretion by failing to submit Heath’s requested jury instructions, as

the district court’s charge adequately guided the jury in its deliberations, and as

the district court’s instructions did not affect the outcome of the case. For these

reasons, the judgment of the district court is 

AFFIRMED.