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Civil Division

Defensive Litigation

The Civil Division for the District of Montana litigates all manner of civil lawsuits involving the United States as a party. In broad terms, these lawsuits are divided into defensive and affirmative cases, but upon closer inspection, we handle many different kinds of lawsuits. We defend torts, federal employment discrimination claims, and medical malpractice claims based on treatment at federal medical facilities. We protect public lands, and access to public lands, with trespass and quiet title actions. We defend the actions of the public land agencies. We sue people who steal federal property, commit fraud, and submit false claims. We collect on delinquent loans guaranteed by the federal government and tax liens. We litigate Social Security Act disability claims. We forfeit drug money and illegal guns. We appear for the United States in bankruptcy court. We defend any and all claims against the federal government and its employees who are carrying out their official duties, and we pursue polluters, cheaters, and scammers to the fullest extent of the law.

By far, the greatest portion of Civil Division resources is devoted to defending torts, employment discrimination cases, and medical malpractice actions. Three of our five attorneys spend most of their time on such defensive cases, many of which arise on one of the District’s seven American Indian Reservations. Here are some examples:

Roundstone v. the United States was a constitutional tort claim against a tribal officer, and personal injury action against the U.S., alleging excessive use of force by a Northern Cheyenne tribal officer in making an arrest. At the time, the Tribe’s law enforcement program operated under P.L. 93-638, Indian self-determination contract with the Bureau of Indian Affairs (BIA), and the tribal officer was deemed to be an employee of the U.S.

We substituted the U.S. for the tribal officer and moved for summary judgment because the government is not liable under federal law for the intentional misuse of force by a federal employee unless he or she is a federal law enforcement officer. A tribal officer is not a “federal law enforcement officer” within the meaning of federal law. The case was dismissed.

In Westwolf v. the United States, BIA law enforcement picked up Westwolf for public intoxication. Under an agreement with the Blackfeet Tribe, public intoxication is handled as a simple detention in the Blackfeet Agency Correctional Facility for eight hours with no charges or other process. Westwolf was released after eight hours . . . which happened to be on a cold February night at 2 a.m. He was not seen again until his body was found frozen in a field five days later. Autopsy reports indicated that he consumed alcohol after his release from detention and died later that morning.

The BIA internal affairs division reviewed the case and found 1) a failure to follow Established policies at the jail, 2), careless performance of assigned duties, and 3) failure to adopt local policy or procedures regarding the incarceration of individuals for public intoxication, in violation of instructions from the Director, Office of Justice Services and the terms of the BIA Adult Detention Handbook, Chapter 7, Section 1. We asserted a strong contributory negligence claim and settled the case for $35,000.

Ellis v. the United States also involved law enforcement. A BIA police officer arrested a third person for intoxication and was transporting him to the jail when he came across a black flatbed truck stalled and partially obstructing the highway after dark. The driver was trying to tow a trailer approximately one mile up the road. The BIA officer stopped, but thought the driver of the stalled truck was towing the trailer immediately off the road. He left the scene. The driver of the truck stated that he thought the officer was going to follow them with his lights flashing until the flatbed was off the road. Just after the officer left, Ellis drove his car into the flatbed truck. He was decapitated. Ellis’ heirs brought suit and argued that a special relationship was created when the BIA officer came across a clearly dangerous obstruction and stopped. We added the owners of the flatbed as third parties, but they were indigent. The deceased was in his 60s and had no children, only adult sibling heirs. We settled the case for $60,000.

Morigeau v. the United States was a simple car accident. On the Confederated Salish and Kootenai Tribes Reservation, the Tribes operate the Two Eagle River School in Pablo, Montana, through a BIA grant. The Two Eagle River School bus pulled on to U.S. Highway 93 one foggy morning and was hit by an oncoming car. The driver of the car sustained fractures to her forearm and wrist, requiring an open reduction, internal fixation. Her twelve-year-old passenger sustained wrist and hip fractures. We settled the driver’s claim for $15,000 and the passenger’s claim for $20,000.

Many similar cases arise at other federal facilities, like the Veteran’s Administration hospital in Miles City, the Indian Health Service, or community health clinics in Billings or Missoula. Some cases arise on federal property, like the national parks, recreation areas, and forests within Montana.

Some cases defy conventional labels. Take for instance

Shiplet v. United States where the plaintiff and her husband owned a operated a large ranch in Park, Meagher, and Gallatin Counties. Shiplet claimed that she was discriminated against by Farm Service Agency (an agency of the U.S. Department of Agriculture) and its predecessor FmHA on the basis of gender and age over a twenty-year period from 1981 through 2001. She claimed that white male ranchers in the area were provided with more favorable loans and loan servicing packages by the agency. The plaintiff was ultimately forced into bankruptcy, and lost a significant portion of the ranch.

We tried the case before Magistrate Judge Caroline Ostby in Billings, who found in favor of the United States on all issues. On appeal to the Ninth Circuit Court of Appeals, Shiplet lost again. Now she is seeking review by the U.S. Supreme Court.

and

Marceau v. the U.S. Department of Housing and Urban Development (HUD) was a class action suit against HUD and the Blackfeet Housing Authority, alleging that approximately 110 homes constructed by Blackfeet Housing in the late 1970's are defective due to inadequate materials, and faulty design and construction. The plaintiffs primarily contended that HUD mandated the use of arsenic-treated wooden foundations in the homes, which were defective and contrary to industry and HUD standards. Plaintiffs claimed that, as a result of the defective design and construction, their homes have become uninhabitable, and have caused sickness and illnesses to themselves and other occupants of the homes.

U.S. District Court Judge Sam Haddon initially granted our motion to dismiss all claims. The Ninth Circuit subsequently issued three different opinions in the case. It initially affirmed dismissal of all counts. On rehearing, it affirmed dismissal of all counts except a claim under the APA. On remand, we filed a motion for summary judgment on the APA count, and Judge Haddon granted the motion. The plaintiffs have appealed again to the Ninth Circuit, which is currently pending.

Finally, the District of Montana has, by necessity, developed a speciality in public land law. Being surrounded by millions of acres of public land has many advantages, but it also brings plenty of litigation. Every major decision on federal public lands is subject to review under the Administrative Procedures Act and various land management statutes like the National Forest Management Act and the Federal Land Policy and Management Act. Federal managers have the difficult task of accommodating public uses while protecting the resources, including its endangered species and endangered natural habitats, for future generations. We have a strong record of successfully defending the decision-making of those managers and, in the process, have helped define and refine procedures for making those decisions more sound and more responsive to public needs.

Affirmative Litigation

The Civil Division also devotes a substantial amount of its resources to affirmative litigation. Most of the lawsuits in this category involve persons or entities who submit false claims or who otherwise commit fraud against the government. Nearly all of this work is based upon the federal False Claims Act, with a significant portion devoted to pursuing health care fraud and contract fraud. The affirmative caseload also includes environmental claims, forfeiture cases, actions involving trespasses upon federal property or resources, discrimination cases, and lawsuits of various kinds to vindicate tribal treaty and other rights.

Since 1999, the District of Montana has had a full-time Affirmative Civil Enforcement attorney who is dedicated to bringing civil claims in cases where the government is a victim of fraud, waste and abuse. In that same period, we carved out a specialty in civil forfeiture. The investment of those resources has paid off. Here is a sample of some notable civil fraud and forfeiture cases over the years:

• United States v. American Gem was a mining claim fraud where the defendants claimed nearly all of the sapphire bearing lands in Montana under blanket claims that were never legally located. Each mining claim filed with the BLM was false. We settled for $410,000.

United States v. Rotech involved a distributor of durable medical equipment that had branches in numerous states. Part of their operation was to over-charge for oxygen services and to continue charging for patients no longer needed it – like dead ones. Rotech filed for bankruptcy when the case began, but we were still able to settle for $17 million.

• In 2004, we settled United States v. Yellowstone Mountain Club, a series of Clean Water Act wetlands fill violations at the private ski club development south of Big Sky. In developing the golf course and ski runs at the site, the Club bulldozed and filled in all kinds of small alpine wetland areas without any permits from the Corps of Engineers. These wetlands are crucial to the health of our pristine waters in Montana, and in this case, tons of unpermitted sediment and fill was dumped into tributaries that flow directly into the Gallatin River. As part of the negotiated deal, the Club agreed to clean out the fill, restore the wetlands, create some new ones, and pay $1.8 million, which, at that time, was the largest ever civil settlement in a Clean Water Act fill case.

We have settled several cases of fraud in the farm programs, the largest of which was United States v. Short Stephens, where the defendant used fictitious farming entities to receive additional farm program payments. The case resulted in the payment of penalties and fines of $4.25 million. We also settled similar cases of farm fraud in United States v. Brewer ($1.4 million), and United States v. Booth ($275,000).

One growing area of affirmative case referrals are citizen complaints called qui tams. Under the federal False Claims Act, 31 U.S.C. §§ 3729–3733 (2006), an ordinary citizen can file a complaint on the government’s behalf if he or she has substantial non-public information that someone else is submitting false claims to the federal government to get paid, or to avoid paying an obligation. Under the statute, a citizen with such information can collect a percentage of any collections. If you have such information, or any questions about filing a qui tam suit, consult a lawyer. You can find a copy of the relevant statute by clicking here.

We also routinely use civil forfeiture proceedings to grab cash seized in drug cases. In a single case in 2006, we civilly forfeited to the United States nearly $500,000 of drug money.

Forfeiture also works in other types of cases. Just last year, we identified a tax cheat who was filing false returns with the IRS and getting tax refunds that were completely fraudulent. On only a few days notice, the Civil Division identified and froze the bank accounts where the money was deposited and forfeited approximately $500,000.

Not all the cases need to be large to be significant. In the wake of Hurricane Katrina, we collected damages related to fraudulent claims for federal emergency relief. In one case, the claimant never left Montana. We also do numerous cases involving drug diversion under the civil regulatory authority of the Drug Enforcement Agency. These cases penalize medical providers for not keeping accurate or complete records of their dispensing of controlled drugs. In many instances, the cases reflect a deeper problem of fraud or addiction that can be addressed in the negotiations over the fine and the medical provider’s continued license to keep and dispense such drugs.

Finally, we expect to see new affirmative casework in the area of fraudulent mortgage securities. Several powerful statutes allow us to penalize false statements in the financial industry, and Montana was not immune to the mortgage schemes that nearly brought this country’s economy to a halt. In the near future, we hope to report significant results in this area.

Civil Caseload Statistics

In 2009 – the latest reporting year available – we opened 204 civil cases. Comparatively, we filed 352 criminal cases in that same span. In that year, we had the 55th highest criminal caseload in the nation (among 94 districts), and the 82nd most civil cases (or the 11th least). But while the number of civil cases filed in most years is never very high compared to other districts, we collect a lot of money.

Over the years, total civil collections have varied a great deal depending on whether we resolved any big environmental or health care cases. In the best of times, collections and have ranked as high as 5th in the nation. Even in years with lower collections, Montana brings in far more than most other small districts. You can see the variation below:

Graph Data for Civil Staticstics for the District of MontanaGraph Illustrating District of Montana Civil Statistics

Since 1997, the District of Montana Civil Division has collected a total of $412.2 million. In all but the leanest of years, those civil collections alone easily cover the operating costs of this office.

Public Outreach

On both the civil and criminal sides of the aisle, the U.S. Attorney’s Office for the District of Montana has a long history of reaching out to the citizens of Montana. We provide training and information on elder abuse in conjunction with the Montana Adult Protective Services. We sponsor the Montana Health Care Fraud Task Force, which has a public participation component. Our attorneys give lectures and seminars on legal issues at State Bar meetings and other conferences. We chair an environmental issues task force and we field all sorts of public requests for information. But that may not always be enough. If you have an idea for further public outreach or training on an issue relevant to duties of this office, let us know. We can be reached at (406) 657-6101 or send us an email to .

Updated January 14, 2015