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Up in the Air in Graham County Soil

Below, Stanford Law School’s Jacqueline de Armas recaps Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson (08-304), one of two cases heard by the Supreme Court on Monday, November 30.  Jacqueline’s earlier preview of the case is available here. Check the Graham County Soil SCOTUSwiki page for additional updates.

Justice Breyer set the tone for oral arguments on Monday’s argument in Graham County Soil & Water Conservation District v. United States ex rel., Karen T. Wilson,.  Justice Breyer plainly admitted that he was “up in the air,” explaining that the arguments “are more balanced than any I can remember.”  Indeed, it was unclear where the Court stood, and the Justices pressed all three lawyers with enthusiasm in considering whether Congress intended the Federal Claims Act’s public disclosure bar of the Federal Claims Act to include state and city “administrative” audits and reports or whether it means only federal audits and reports.

At the outset, the Justices were concerned with the practicalities of their ruling.  Justice Scalia and Ginsburg immediately asked what effect the Act would have on the States’ ability to immunize themselves from harm, and they expressed concern that the availability of qui tam actions would be reduced.  Later, the Court turned to the text, with Justice Ginsburg highlighting the redundancy that the petitioner’s argument would produce in the text.  Throughout his argument, Christopher Browning – arguing for Graham County – emphasized the possibility that the potential flood of actions from opportunistic qui tam relators would rob the government of revenues and unjustly enrich opportunistic relators.

Arguing on behalf of respondent Karen Wilson, Mark T. Hurt began by parsing the public disclosure bar into three categories and highlighting the exclusively federal nature of his second category – encompassing “administrative” reports and audits.  Justice Ginsburg posed the hypothetical whether, if the first category encompasses state and federal materials, the second category should then be read as federal.  Mr. Hurt responded that the categories are distinct in grammar and function.  Throughout, Mr. Hurt sought to counter Mr. Browning’s forecast of a flood of actions by stressing “an enormous number of reports and audits that the Federal Government is likely never to see.”

Almost immediately after Assistant to the Solicitor General Douglas Hallward-Driemeier began his argument on behalf of the United States, Justice Ginsburg again returned to her hypothetical. Mr. Hallward-Driemeier emphasized the legislative history of the Act, arguing that the Act was not contemplated as encompassing the States, and he tried to highlight the federal nature of the second category.

During Mr. Browning’s rebuttal, Chief Justice Roberts again categorized this case as a toss-up:  he asked whether, “to follow up . .. [on] a question that Justice Breyer asked . . . do you have any tie-breaker on your side?” Mr. Browning ended with the idea that over-zealous lawyers and relators will be disruptive to states and local governments.