IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
UNITED STATES OF AMERICA, *
ex rel. DAVID L. LEWIS, PH.D.;
R.A. McELMURRAY, III; and *
G. WILLIAM BOYCE,
*
Plaintiffs,
*
vs.
* CASE NO. 3:06-CV-16(CDL)
JOHN WALKER, PH.D.; JULIA W. *
GASKIN; ROBERT B. BROBST;
WILLIAM P. MILLER, PH.D.; *
E. WILLIAM TOLLNER, PH.D;
L. MARK RISSE, PH.D.; THE BOARD *
OF REGENTS OF THE UNIVERSITY OF
GEORGIA; THE UNIVERSITY OF *
GEORGIA RESEARCH FOUNDATION,
INC.; and JOHN DOE(S), *

Defendants. *

O R D E R

Relators David L. Lewis, Ph.D., R. A. McElmurray, and G. William
Boyce filed the above-captioned qui tam action under the False Claims
Act (“FCA”), 31 U.S.C. §§ 3729-3731. Relators allege that Defendants
violated the FCA by submitting false or fraudulent grant applications
in order to receive federal funds to support their environmental
research projects. Presently pending before the Court are: (1) Board
of Regents’ Motion to Dismiss (Doc. 21); (2) Defendant University of
Georgia Research Foundation’s Joinder in and Adoption of Defendant
Board of Regents’ Motion to Dismiss and Brief in Support of Board of
Regents’ Motion to Dismiss (Doc. 22); (3) Motion to Dismiss by
Defendants Gaskin, Miller, Tollner, and Risse (Doc. 23); and
(4) Motion to Dismiss by Defendants John Walker Ph.D. and Robert B.
Case 3:06-cv-00016-CDL Document 53 Filed 09/14/2007 Page 1 of 19
For ease of reference, the Court will refer to the Board of Regents 1
as “the Board” and the University of Georgia Research Foundation as “the
Foundation.”

Relator Lewis was an EPA research microbiologist who worked at UGA 2
from December 1998 to November 2002. In December 1998, Relator Lewis began
“investigating adverse health complaints reported by individuals exposed
to sewage sludge produced by the City of Augusta[.]” (Compl. ¶ 69.) When
he completed his research in December 2004, Relator Lewis concluded that
hazardous materials in sewage sludge impair the immune systems of
chronically exposed humans and animals. (Id. at ¶¶ 79-80.)
2
Brobst (Doc. 41).1 Defendants seek dismissal of Relators’ Complaint
based upon failure to state a claim upon which relief can be granted,
lack of subject matter jurisdiction, and failure to plead with
sufficient particularity. See Fed. R. Civ. P. 12(b)(6), 12(b)(1), and
9(b). For the following reasons, the Court grants the motions to
dismiss as to the Board and the Foundation, but denies the motions
with respect to each of the remaining Defendants.

BACKGROUND

The present action is the latest in a series of lawsuits
involving Relators McElmurray and Boyce and the application of treated
sewage sludge to their Georgia farmlands. In 1998 and 2001,
respectively, Relators McElmurray and Boyce sued the City of Augusta,
alleging that sewage sludge they received from the Messerly Wastewater
Treatment Plant (“MWTP”) contained hazardous concentrations of
chemical wastes that contaminated forage crops and poisoned their
dairy cattle.2 (Compl. ¶¶ 19, 45, 46.) The lawsuits threatened to
discredit this particular method of waste disposal as safe and
effective. Relators assert that the lawsuits also threatened to
discredit Defendants, whose reputations and financial interests “were
substantially tied to promoting land application of sewage
sludge . . . .” (Id. at ¶ 83.)

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Defendant Tollner did not become involved with the Risse project 3
until after his colleagues submitted the Application.
3

I. The Risse Project
In November 1998, Defendants met to discuss the possibility of
initiating a research project “to provide EPA with technical
information that the Defendants could use to discredit the lawsuits
filed by . . . Relators McElmurray and Boyce[.]” (Id. at ¶ 21.)
Defendant Walker was EPA’s national spokesperson for promoting land
application of sewage sludge. He contacted Defendant Brobst, the EPA
employee in charge of investigating the Augusta allegations, and
Defendants Gaskin, Miller, Risse, and Tollner, a group of University
of Georgia professors and research scientists. On June 15, 1999,
Defendants Gaskin, Miller, and Risse submitted a Small Grant
Application Kit (“the Application”) requesting EPA funding for “the
Risse project.”3 Specific statements in the Application claimed that:
(1) “the Risse project would not directly benefit EPA, and
that EPA did not solicit the work[]”;
(2) “Defendant Risse was the Principal Investigator and
. . . was uniquely qualified to do the work[]”; and
(3) “the duration of the project was too short for
[Quality Assurance/Quality Control (“QA/QC”)] measures
to be necessary[,] . . . [and] no forage samples would
be collected under drought conditions[.]”
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4
(Id. at ¶ 29, 30, 31 (footnotes omitted).) Relators allege that each
of these statements is false, and therefore contend that the
Application violates the FCA.

The Federal Grants and Cooperative Agreement Act of 1977
(“FGCA”), 31 U.S.C. §§ 6301-6308, governs the use and assignment of
federal funds. Under the FGCA, a federal agency may enter into a
grant agreement if “(1) the principal purpose of the relationship is
to transfer a thing of value . . . to carry out a public purpose . . .
and (2) substantial involvement is not expected between the [] agency
and the . . . recipient . . . .” Id. at § 6304. Relators allege that
the Application violated the FGCA “[b]ecause Defendants Walker and
Brobst solicited the Risse project to directly benefit EPA’s . . .
investigations concerning allegations made in the lawsuits filed by
. . . Relators McElmurray and Boyce[.]” (Compl. ¶ 29.) Relators
likewise contend that (1) “Defendant Risse had little, if anything,
to do with the actual work, and the project involved routine
environmental sampling and chemical analyses,” and (2) Defendants
submitted the Application “several weeks after they were already
collecting samples that were obtained during the severe drought, . . .
[and] never amend[ed] . . . their QA/QC commitments and/or
requirements.” (Id. at ¶¶ 30, 31.) Finally, Relators contend that
Defendants Miller, Gaskin, Walker, and Brobst failed to disclose
personal conflicts of interest as required by the FGCA. (Id. at
¶ 32.) Thus, according to Relators, Defendants violated the FCA by
presenting a false or fraudulent grant application for the purpose of
obtaining research money from EPA. See 31 U.S.C. § 3729(a).
Case 3:06-cv-00016-CDL Document 53 Filed 09/14/2007 Page 4 of 19
Defendants Gaskin, Brobst, Miller, and Tollner are the listed co- 4
authors of the Gaskin paper. (See Compl. ¶ 37 n.30.)
5
II. The Gaskin Paper

EPA ultimately approved the grant and Defendants commenced the
Risse project. On December 19, 2001, Defendants submitted “the Gaskin
paper,” a paper outlining their research, for publication in the
Journal of Environmental Quality.4 In addition to outlining the
results of the Risse project, the Gaskin paper presented Defendants’
conclusions that Augusta’s land application program complied with
federal and state environmental laws and was a safe and effective
method for disposing of sewage sludge. Relators dispute these
conclusions and assert that Defendants “knew that . . . all of their
data[] . . . were unreliable, false, or fabricated[,]” and that “all
of the conclusions in the Gaskin paper, which were based on these
knowingly false, fabricated and misleading scientific data, were also
false and/or misleading.” (Compl. ¶ 36 (footnote omitted).) Relators
allege that “Defendants have submitted approximately nine additional
applications for federal assistance, using false or fabricated data
from the Risse Project and [the] Gaskin paper.” (Id. at ¶¶ 64, 86.)
Relators also contend that the Board and the Foundation are
vicariously liable for the false statements made by the individual
Defendants. See Grand Union Co. v. United States, 696 F.2d 888, 891
(11th Cir. 1983) (“We have held that in cases brought under the False
Claim Act that the knowledge of an employee is imputed to the
corporation when the employee acts for the benefit of the corporation
and within the scope of his employment.”) (footnote and internal
citations omitted).

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6

STANDARD FOR MOTION TO DISMISS

Defendants seek dismissal of this action based upon lack of
subject matter jurisdiction, Relators’ failure to state a claim for
which relief can be granted, and failure to plead the FCA claims with
particularity as required by Rule 9(b). See Fed. R. Civ. P. 12(b)(1),
12(b)(6), 9(b). Since Defendants’ jurisdictional challenge is a
facial one, the Court reviews the Complaint to “see if [Relators have]
sufficiently alleged a basis of subject matter jurisdiction, [taking]
the allegations in [the] complaint [] as true for the purposes of the
motion.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261
(11th Cir. 1997) (internal quotation marks and citations omitted).
Similarly, in evaluating Defendants’ contention that Relators’ have
failed to state a claim upon which relief may be granted, the Court’s
analysis “is limited primarily to the face of the complaint and
attachments thereto.” Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1368 (11th Cir. 1997). The Court must
“constru[e] the complaint in the light most favorable to the plaintiff
and accept[] as true all facts which the plaintiff alleges.” Day v.
Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005). “Of course, ‘a
formulaic recitation of the elements of a cause of action will not
do.’” Watts v. Fla. Int’l Univ., __ F.3d __, 2007 WL 2331029 at *5
(11th Cir. Aug. 17, 2007) (citing Bell Atl. Corp. v. Twombly, __ U.S.
__, 127 S. Ct. 1955, 1965 (2007)). A complaint must include
sufficient factual allegations “to raise a right to relief above the
speculative level” and “to raise a reasonable expectation that
discovery will reveal evidence of” the plaintiff’s claim or claims.
Id. (internal quotation marks and citations omitted). Finally, to
determine whether Relators have alleged their claims with sufficient
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7
particularity under Rule 9(b), the Court must evaluate whether the
Complaint presents “facts as to time, place, and substance of the
defendant’s alleged fraud, and the details of the defendant[‘s]
allegedly fraudulent act, when they occurred, and who engaged in
them.” Corsello, 428 F.3d at 1012 (internal quotation marks and
citations omitted).

DISCUSSION

The FCA imposes civil liability upon “[a]ny person who knowingly
presents, or causes to be presented, to an officer or employee of the
United States Government . . . a false or fraudulent claim for payment
or approval[.]” 31 U.S.C. § 3729(a)(1). Each Defendant contends that
Relators have failed to state a claim under the FCA and that this
Court lacks subject matter jurisdiction because Relators are not
“original sources” of the publicly disclosed information upon which
their allegations depend. Each Defendant also maintains that
Relators’ claims are barred by the applicable statute of limitations
and that Relators’ claims should be dismissed because they are not
plead with sufficient particularity. In addition to these common
defenses, the Board and the Foundation argue that they are not covered
by the FCA and that they cannot be held vicariously liable for the
acts of the individual Defendants. Finally, Defendants Walker and
Brobst seek dismissal based upon qualified immunity. The Court will
first address the defenses common to all Defendants and then will
discuss the individual defenses of the Board, the Foundation, Walker
and Brobst.

Case 3:06-cv-00016-CDL Document 53 Filed 09/14/2007 Page 7 of 19
8

I. Common Defenses

A. Subject Matter Jurisdiction

Section 3730(e)(A) of the FCA provides that “[n]o court shall
have jurisdiction over [a civil action filed under the FCA] based upon
the public disclosure of allegations or transactions . . . unless the
action is brought by the Attorney General or the person bringing the
action is an original source of the information.” 31 U.S.C. §
3730(e)(4)(A); see also Rockwell Int’l Corp. v. United States, __ U.S.
__, 127 S. Ct. 1397, 1401 (2007) (noting that 31 U.S.C. §
3730(e)(4)(A) creates a jurisdictional bar). The FCA defines an
“original source” as “an individual who has direct and independent
knowledge of the information on which the allegations are based.” 31
U.S.C. § 3730(e)(4)(B). To determine whether jurisdiction exists, the
Court conducts a three-part inquiry: “(1) have the allegations made
by the plaintiff been publicly disclosed; (2) if so, is the disclosed
information the basis of the plaintiff’s suit; (3) if yes, is the
plaintiff an ‘original source’ of that information.” Cooper v. Blue
Cross & Blue Shield of Fla., Inc., 19 F.3d 562, 565 n.4 (11th Cir.
1994); Battle ex rel. v. Bd. of Regents, 468 F.3d 755, 762 (11th Cir.
2006).

Defendants assert that the jurisdictional bar applies to this
case because Relators’ allegations were publicly disclosed prior to
this action, and Relators are not original sources of the disclosed
information. Since this case is at the motion to dismiss stage and
the jurisdictional challenge is a facial one, the Court must examine
Relators’ Complaint to determine whether they allege sufficient facts
to overcome the jurisdictional bar. The essence of Relators’ FCA
claim is that Defendants “knowingly caused to be submitted

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9

approximately 10 grant applications, whereby they would obtain federal
funds, by the use of false or fabricated data.” (Compl. ¶ 86.)
Specifically, Relators allege that Defendants violated the FCA because
they submitted grant applications for federal funds that were based
on research Defendants knew to be false and fraudulent. Defendants
contend that “all of the Relators’ allegations are contained in
publicly disclosed documents[, and that] Relators simply gathered this
publicly disclosed information and filed a qui tam complaint.” (Mot.
to Dismiss by Defs. Gaskin, Miller, Tollner, and Risse 11; see also
Br. in Supp. of Mot. to Dismiss by Defs. John Walker Ph.D. and Robert
B. Brobst 7-12; Br. in Supp. of Bd. of Regents’ Mot. to Dismiss 10.)
Defendants correctly point out that many of the documents to
which Relators cite were part of the public domain prior to their
filing this lawsuit. However, the face of the Complaint makes clear
that Relators cite to these documents in order to support the factual
allegation that land application is not a safe and effective means of
disposing of sewage sludge. In other words, Relators use the publicly
disclosed documents to factually discredit Defendants’ research and
allege that Defendants’ conclusions were wrong. This, however, is not
the “allegation” Relators assert against Defendants. Relators do not
allege that Defendants violated the FCA because their research was
wrong. Instead, Relators maintain that Defendants violated the FCA
because they knowingly based their research on false and fraudulent
data and knowingly used that data to support their claims for federal
research funds. See 31 U.S.C. § 3829(a)(1) (imposing civil liability
only where a person “knowingly presents, or causes to be presented,
. . . a false or fraudulent claim for payment or approval[.]”)
(emphasis added). Without such knowledge of falsity, Defendants’

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10
conduct does not violate the FCA, and the publicly disclosed
information does not even suggest that Defendants knew their research
was false. In order to support the allegations relating to
Defendants’ knowledge of falsity, Relators primarily rely upon
correspondence sent to, from, and among Defendants. Defendants have
not argued that this correspondence was publicly disclosed, and such
is not apparent from the face of the Complaint. The jurisdictional
bar only applies to FCA actions “based upon the public disclosure of
allegations or transactions . . . .” 31 U.S.C. § 3730(e)(4)(A). The
Complaint demonstrates that the alleged FCA violations are not “based
upon [] public disclosure[,]” but upon Defendants’ private
correspondence. Accordingly, at this stage in the litigation, the
Court finds that the jurisdictional bar does not apply and denies
Defendants’ motion to dismiss for lack of subject matter jurisdiction.

B. Statute of Limitations

Defendants also contend that Relators failed to file this action
within the applicable limitations period. The FCA contains its own
limitations provision, which reads:
A civil action . . . may not be brought—(1) more than 6
years after the date on which the violation . . . is
committed, or (2) more than 3 years after the date when
facts material to the right of action are known or
reasonably should have been known by the official of the
United States charged with responsibility to act in the
circumstances[.]

31 U.S.C. § 3731(b). Since Defendants filed the first allegedly false
grant application in June 1999, and since each of the alleged
subsequent violations stem from this initial filing, Relators
acknowledge that the February 17, 2006 filing date places their claims
outside the six-year limitations period. Relators contend, however,
that the Complaint is still timely under the tolling provision in
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11
subsection (b)(2). Specifically, Relators argue that: (1) the United
States Department of Justice (“USDOJ”) is “the [agency] of the United
States charged with responsibility to act”; (2) the USDOJ did not know
of the “facts material to the right of action” until Relators provided
that information; and (3) Relators did not acquire the information
regarding Defendants’ false claims until late-2004. Thus, according
to Relators, the FCA tolling provision extended their time to file by
an additional three years beginning in late-2004.

Although the Eleventh Circuit has not yet addressed the issue,
there is a conflict among federal courts as to whether, and how, the
FCA tolling provision applies to qui tam actions. The handful of
courts to have addressed this issue are divided into three different
schools of thought. The first interpretation is that the reference
to an “official of the United States” is a literal requirement of the
tolling provision such that the provision does not apply to a qui tam
action unless the government intervenes as an actual participant in
the lawsuit. See, e.g., United States ex rel. Sikkenga v. Regence
Bluecross Blueshield of Utah, 472 F.3d 702, 725 (10th Cir. 2006);
United States ex rel. Thistlewaite v. Dowty Woodville Polymer, Ltd.,
6 F. Supp. 2d 263, __ (S.D.N.Y. 1998); United States ex rel. El Amin
v. George Washington University, 26 F. Supp. 2d 162, __ (D.D.C. 1998).
The second interpretation is that a qui tam relator steps into the
government’s shoes so that subsection (b)(2) will toll the limitations
period until the relator gains knowledge of the alleged wrongdoing.
E.g., United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211 (9th
Cir. 1996); United States ex rel. Malloy v. Telephonics Corp., 68 Fed.
App’x 270 (3rd Cir. 2003); United States ex rel. Bidani v. Lewis,
No. 97 C 6502, 1999 WL 163053 (N.D. Ill. Mar. 12, 1999). The third

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12
interpretation is that subsection (b)(2) applies to all FCA actions
and tolls the limitations period until the relevant government
official learns of the alleged FCA violation. United States ex rel.
Colunga v. Hercules, No. 89-CV-954B, 1998 WL 310481 (D. Utah Mar. 6,
1998). In order to determine the merits of Defendants’ statute of
limitations defense, this Court must first decide which of the above
interpretations is the appropriate interpretation to apply to this qui
tam action. The Court must then decide whether Relators timely filed
their Complaint according to the appropriate interpretation of the FCA
tolling provision.

Relators contend that the third interpretation is the correct and
appropriate interpretation. They urge this Court to find both that
subsection (b)(2) applies to this qui tam action and that the
limitations period was tolled for three years from the date on which
they provided the USDOJ with relevant evidence of Defendants’ false
statements. Defendants, on the other hand, advocate for the most
restrictive interpretation—that the FCA tolling provision never
applies to qui tam actions in which the government chooses not to
intervene. Thus, according to Defendants, Relators are bound by the
six year limitations period outlined in subsection (b)(1) and the
Complaint is untimely. The Court finds persuasive the reasoning of
those courts that reject the most restrictive interpretation of the
tolling provision and finds that subsection (b)(2) applies to the
present qui tam action. See, e.g., Hyatt, 91 F.3d at 1214 (“Section
3731(b) delineates the statute of limitations for a ‘civil action
under section 3730.’ No distinction is made between civil actions
brought by the government under § 3731(a) and those brought by qui tam
plaintiffs under § 3730(b). . . . If Congress had intended the tolling
Case 3:06-cv-00016-CDL Document 53 Filed 09/14/2007 Page 12 of 19
Relators claim that once they gained knowledge of the allegedly 5
fraudulent content of Defendants’ grant applications, they provided that
information to the USDOJ. Therefore, according to Relators, both Relators
and the USDOJ gained knowledge of the alleged FCA violation in late-2004.
13
provisions of § 3731(b)(2) to apply solely to suits brought by the
Attorney General, it could have easily expressed its specific
intent.”); Bidani, 1999 WL 163053 at *9 (“ . . . [Section] 3731(b)(2)
is construed as applying to actions brought by a qui tam plaintiff and
in which the government has not joined. In such cases, the three-year
knowledge rule is measured by the knowledge of the qui tam
plaintiff.”). Under either of the other interpretations, the Court
finds that the Complaint “identif[ies] facts that are suggestive
enough to render [it] plausible[]” that the limitations period was
tolled such that this action is timely.5 Bell Atl. Corp., __ U.S. __,
127 S. Ct. at 1965. Therefore, the Court denies Defendants’ motions
to dismiss based upon the statute of limitations.
C. Rule 9(b)
Rule 9(b) requires that “[i]n all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be stated with
particularity.” A complaint alleging a violation of the FCA must
comply with the requirements in Rule 9(b). United States ex rel.
Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1309 (11th Cir.
2002); Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir.
2005). To satisfy the “particularity” requirement, a qui tam relator
must plead “facts as to time, place, and substance of the defendant’s
alleged fraud, and the details of the defendant[‘s] allegedly
fraudulent act, when they occurred, and who engaged in them.”
Corsello, 428 F.3d at 1012 (internal quotation marks and citations
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Defendants also contend that Relators failed to link the allegedly 6
false and fraudulent data and conclusions presented in the Gaskin paper to
a “claim for payment.” It is clear, however, that Relators do not allege
that the Gaskin paper itself constitutes a violation of the FCA, so the
Court need not address this argument.
Although Relators claim that the Board and the Foundation are 7
vicariously liable for the fraudulent acts of the individual Defendants,
they did not allege vicarious liability in the Complaint. The adequacy of
the pleadings with respect to these Defendants is addressed in the section
of this Order devoted to individually asserted defenses.
14
omitted). Defendants assert that Relators failed to plead their
claims “with particularity” because: (1) with respect to the Risse
project grant application, Relators did not identify the fraud
specific to each Defendant; and (2) with respect to the nine
additional grant applications, Relators did not allege any specific
information identifying the fraud contained therein.6
Despite Defendants argument to the contrary, Relators’ Complaint
clearly pleads “facts as to time, place, and substance of the []
alleged fraud, and the details of the [] allegedly fraudulent act[s],
when they occurred, and who engaged in them.”7 Corsello, 428 F.3d at
1012. First, the Complaint alleges that Defendants Walker, Brobst,
Gaskin, Miller, and Risse met in December 1998 to discuss the Risse
project, which Defendants Walker and Brobst specifically solicited to
benefit the EPA. (Compl. ¶¶ 22, 29.) Second, Relators identify that
Defendants Risse, Gaskin, and Miller submitted the Risse project grant
application on June 15, 1999, and that this application falsely
claimed that: (1) “the Risse project would not directly benefit EPA”;
(2) “Defendant Risse was the Principal Investigator and . . . was
uniquely qualified to do the work”; (3) “the duration of the project
was too short for QA/QC measures to be necessary”; and (4) “no forage
samples would be collected under drought conditions[.]” (Compl.
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Relators clearly allege that Defendants Gaskin, Miller, Tollner, and 8
Brobst participated in the Risse project and contributed to the Gaskin
paper. They also allege that Defendant Walker “was directly involved from
the beginning in representing Augusta’s unreliable and false historical
data as scientifically credible.” (Compl. ¶ 37.) According to Relators,
“Defendant Walker suggested to Defendant Miller that he should just
‘estimate’ the historical application rates[,]” and “[t]his representation
was made in the Gaskin paper . . . .” (Id.)

It is unclear whether Relators are alleging that the only false and 9
fraudulent claims included in the additional research grant applications
are limited to the scientific data and conclusions from the Risse project
and Gaskin paper. Relators clearly allege that Defendants submitted
numerous grant applications after the completion of the Risse project, and
they further allege that Defendants based these applications on the false
or fabricated data from the Risse project and the Gaskin paper. However,
to the extent Relators allege that these subsequent grant applications
contain allegedly false statements that are unrelated to the scientific
validity of Defendants’ research data and conclusions, Relators have failed
to plead these false claims with the specificity required by Rule 9(b).
It may be that Relators are making no such claim. If such a claim is being
made, however, then it needs to be plead with more particularity. Rather
than dismiss any such claims at this time, the Court allows Relators
fourteen days from the date of this Order to amend their Complaint to
specifically identify any additional false statements upon which they
intend to rely in order to establish additional FCA violations beyond the
June 15, 1999 grant application. See Fed. R. Civ. P. 15(a) (“[A] party may
amend the party’s pleading [] by leave of court . . . ; and leave shall be
15
¶¶ 24, 29, 30, 31.) Relators also specifically allege that Defendants
Miller, Gaskin, Walker, and Brobst failed to disclose financial
conflicts of interest. (Compl. ¶ 32.) Relators describe their bases
for alleging that these statements were false, and also allege that
Defendants knew of their falsity. (See Compl. ¶¶ 29-34.)
Furthermore, Relators contend that both the Risse project and the
Gaskin paper were based on false and fraudulent data, and they provide
numerous factual allegations to support this contention.8 (See Compl.
¶¶ 35-84.) Finally, Relators assert that Defendants used their data,
which was known to be false, to submit numerous additional research
grant applications that contained false claims of scientific
validity.9 (See Compl. ¶¶ 63-86.) In short, the Complaint “alert[s]
Case 3:06-cv-00016-CDL Document 53 Filed 09/14/2007 Page 15 of 19
freely given when justice so requires.”).
16
defendants to the precise misconduct with which they are charged . .
. .” United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1359
(11th Cir. 2006) (internal quotation marks and citation omitted).
Based on the foregoing, the Court denies Defendants’ motions to
dismiss pursuant to Rule 9(b).

II. Individual Defenses of the Board, the Foundation, Walker,
and Brobst

A. The Board and the Foundation

In addition to the common defenses, the Board and the Foundation,
assert defenses that solely relate to them. The Board argues that it
should be dismissed as a Defendant because, under the law, the Board
is not a “person” subject to liability under the FCA. Relators argue
that the Board is a state-created corporation and that the Board is
not entitled to sovereign immunity in an action where the United
States is the real party-in-interest. Although Relators are correct
that municipal corporations may be subject to FCA liability, see
generally Cook County v. United States ex rel. Chandler, 538 U.S. 119
(2003), the Board clearly is not a municipal corporation, but an
agency of the State of Georgia. Bd. of Regents v. Doe, 278 Ga. App.
878, 878, 630 S.E.2d 85, 87 (Ga. Ct. App. 2006) (“The Board of Regents
[] is a state agency that governs and manages the University System
of Georgia and its member institutions[.]”); see also O.C.G.A. § 20-3-
36 (providing sovereign immunity defense to the Board of Regents).
In Vermont Agency of Natural Resources v. United States ex rel.
Stevens, the Supreme Court specifically held that the FCA “does not
subject a State (or state agency) to liability . . . .” 529 U.S. 765,
788 (2000). Since the Board is an agency of the State of Georgia, it
Case 3:06-cv-00016-CDL Document 53 Filed 09/14/2007 Page 16 of 19
Relators also assert claims against “John Doe” Defendants, which 10
could potentially include employees of the Foundation. However, it does
not satisfy the pleading requirements of Rule 9(b) to assert that an
unnamed and unidentified individual, who may have been employed by the
Foundation, may have submitted a false claim to the government that
violates the FCA. See Corsello v. Lincare, Inc., 428 F.3w 1008, 1012 (11th
Cir. 2005) (“To state a claim under the False Claims Act with
particularity, the complaint must allege facts as to time, place, and
substance of the defendant’s alleged fraud, [and] the details of the
defendants’ allegedly fraudulent acts, when they occurred, and who engaged
in them.”) (alteration in original) (internal quotation marks and citation
omitted).
17
is not a “person” subject to liability under the FCA and must be
dismissed as a Defendant.

The Foundation, while acknowledging that it is a “person” for FCA
purposes, maintains that it cannot be liable under the FCA because it
is undisputed that it did not employ any of the individual Defendants
and thus cannot be found vicariously liable for their allegedly false
statements. See Grand Union Co., 696 F.2d at 891. In support of this
argument, the Foundation points to Relators’ Complaint, which clearly
alleges that either the University of Georgia or the EPA employs each
of the individual Defendants. (See Compl. ¶¶ 8-14.) Having reviewed
the entire Complaint, the Court is unable to discern any factual
support for the proposition that the Foundation employed any of the
individual Defendants. Relators have failed to state a claim for
vicarious liability against the Foundation,10 and none of the factual
allegations support a claim for direct liability. Therefore, the
Court must likewise dismiss the Foundation.

B. Defendants Walker and Brobst

In addition to the common defenses asserted by all Defendants,
Walker and Brobst maintain that they must be dismissed because they
have qualified immunity. They argue that at all relevant times they

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18

were acting within their discretionary authority as employees of EPA.
The qualified immunity defense provides government officials
performing discretionary functions with complete protection from
damages liability “‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’” Hartley v. Parnell, 193 F.3d 1263, 1268
(11th Cir. 1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). According to Defendants Walker and Brobst, there is no
“clearly established law” to provide them with notice that their
involvement with the Risse project could subject them to personal
liability under the FCA. Here, however, Relators plainly allege that
Defendants Walker and Brobst “knowingly caused to be submitted [] 10
grant applications, whereby they would obtain federal funds, by the
use of false or fabricated data[,]” to discredit the lawsuits filed
by Relators McElmurray and Boyce. (Compl. ¶ 86 (emphasis added); see
also, e.g., id. at ¶¶ 21, 29.) At this stage in the litigation, the
Court is required to accept all of Relators allegations as true.
Thus, the Court must accept that Defendants Walker and Brobst
knowingly caused false grant applications to be submitted to the EPA,
which clearly violates the FCA. Since “[t]he [qualified immunity]
defense is designed to protect ‘all but the plainly incompetent or
those who knowingly violated the law[,]’” Morse v. Frederick, __ U.S.
__, 127 S. Ct. 2618, 2640 (2007) (internal citation omitted), the
Court finds that Defendants Walker and Brobst are not entitled to
qualified immunity.

CONCLUSION
For the reasons stated herein, the Court grants the Board of
Regents’ (Doc. 21) and the University of Georgia Research Foundation’s

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(Doc. 22) Motions to Dismiss. The Court denies the Motion to Dismiss
by Defendants Gaskin, Miller, Tollner, and Risse (Doc. 23) and the
Motion to Dismiss by Defendants John Walker Ph.D. and Robert B. Brobst
(Doc. 41).
IT IS SO ORDERED, this 14th day of September, 2007.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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