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: Virginia Qui Tam Law

Truly, there is nothing new under the sun....including the reasons UVa seeks to quash the Civil Investigative Demand issued by Attorney General Ken Cuccinelli

By Zachary A. Kitts

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Lest anyone think that the debate about Attorney General Ken Cuccinelli's civil investigative demand to the University of Virginia is something new, I am here to confirm that there is nothing new under the sun.

In fact, it is rather common for targets of lawsuits (or the recipient of a CID) pursuant to the Federal False Claims Act or the Virginia Fraud Against Taxpayers Act to claim that they are being targeted for political reasons. It is also very common for the people who support such targets to think that they are being targeted for political reasons.

The broad outlines of the facts of the case are as follows: Prof. Mann was formerly at UVa, where he performed research into his global warming theories (or climate change theories, depending on which view of this matter you believe).

Some recent revelations about Dr. Mann's research indicates that he falsified research results in order to obtain various grants from state and federal government sources. I am referring, specifically, to the "climate-gate" scandal that broke last fall in which several thousand emails to and from Dr. Mann somehow ended up in the public realm.

Many of those emails purport to show Dr. Mann conspiring with others to hide certain evidence showing various flaws in his theories. Mann and his supporters reply that those emails are taken out of context, etc.

I have previously discussed the phenomenon of people not being able to believe that a certain person would knowingly submit a false claim to the government based on pure emotion. For example, in an old post about fraud on the federal government by a hearing-impaired business man, we heard things like: "I don't think he would commit fraud on the government--he has always been very supportive of the hearing-impaired community."

Huh? How is it that being a supporter of a good cause automatically makes a person honest?

Anyway, UVa has resisted General Cuccinelli's civil investigative demand, and has filed a motion to quash and/or set aside the CIDs in the Circuit Court for the County of Albemarle, Virginia. This is shaping up to be an interesting fight, because this is the very first time to my knowledge that a party has filed a motion to quash a CID served under VFATA ( Va. Code 8.01-216.10 ).

Generally speaking, unless a party to whom a CID was issued can show some good grounds--such as the Constitutional protections of the First or Fifth Amendments, for example--why the CID should be quashed, CIDs are very much enforceable.

On the facts of this specific case, the CID issued to UVa for records related to Michael Mann's research seems to be supported by the facts and the law. Many of the arguments raised by UVa (for example, that certain of the contracts at issue were awarded before FATA took effect) are red-herrings.  On the facts of this case, the date a contract was awarded is not relevant, because the allegations are that false claims were made on the contract after the VFATA took effect on January 1, 2003.

Similarly, the argument that federally funded research grants cannot be the subject of a FATA case is probably also a red-herring, although it would depend on many specifics that I do not have at this point. Moreover, while UVa was the recipient of the CID, they are not a "target" as that term is traditionally defined in this context. Michael Mann is the target, and not UVa, although UVa does seem to have a number of records.

Despite its status as a non-target, UVa has decided to stand and fight. I believe most defense lawyers will tell you that targets of a CID have nothing to gain and everything to lose by failing to comply with a CID; again, however, UVa is not a target here.

It will be interesting to see how this pans out--stay tuned

Full post as published by Virginia Qui Tam Law on June 01, 2010 (boomark / email).