Splits Noted in the Circuits - 3/4-3/7

• Does Labelling a Prisoner a Snitch, Standing Alone, Violate a Clearly Established Constitutional Right? Irving v. Dormire, 2008 WL 613121, *13-*14 (8th Cir. Mar. 7, 2008)

William Irving, an inmate in Missouri's Jefferson City Correctional Center, filed suit against several prison officials alleging, inter alia, that the officials violated his Eighth Amendment rights by labelling him a snitch. Such actions, Irving asserted, violated the officials' duty to take reasonable measures to guarantee the safety of the inmates. In this case, Irving was not attacked after being labelled a snitch, so his injury, if any, would be the fear he experienced.

This panel of the Eighth Circuit notes that the circuits are split on the issue of whether labelling an inmate a snitch, absent other harm, is a violation of the Eighth Amendment -- CAs 9,10, and 11 hold that it is, whereas CA 7 requires an actual injury rather than fear. Despite this split, the panel affirms the denial of qualified immunity on this point, finding that labelling an inmate a snitch is a violation of a clearly established constitutional right. Perhaps the other alleged actions of these prison officials -- death threats and permitting beatings -- influenced the decision on this point.

• Under the FLSA, Does a Jury Decision on Willfulness Resolve the Question of Good Faith for Purposes of Liquidated Damages? Rodriguez v. Farm Stores Grocery, Inc., 2008 WL 601845, *32-*36 (11th Cir. Mar. 6, 2008)

This whole decision is well worth a read, not least due to its citation of the ‘tipsy coachman’ doctrine, complete with relevant poem. This doctrine urges appellate courts to affirm trial court judgments made on erroneous grounds if any alternative theory could support them. “The pupil of impulse, it forc'd him along, His conduct still right, with his argument wrong; Still aiming at honour, yet fearing to roam, The coachman was tipsy, the chariot drove home.”

More to the point of this post, however, the decision notes a split of authority on the question of whether a jury decision on the issue of whether an employer’s conduct was willful necessarily resolves the question of whether the employer acted in good faith for the purposes of liquidated damages. Interestingly enough, however, the panel then continues on to resolve the split in a way that does justice to both sides and makes eminent sense – no, a jury’s finding is not necessarily preclusive as to the issue of liquidated damages. The way to square the circle is to focus on where the burden of proof is placed. For willfulness, the burden is on the plaintiff/employee; for good faith, it is on the defendant/employer. Thus a finding of willfulness necessarily includes a finding of bad faith, but not vice-versa.

• What Constitutes an ‘Obligation’ to Trigger the Reverse False Claims Act?
  Hoyte v. Am. Nat’l Red Cross, 2008 WL 564649, *21 (D.C. Cir. Mar. 4, 2008)
  

Michelle Hoyte initiated a qui tam action against the American Red Cross alleging that (i) the Red Cross mishandled blood supplies in contravention a consent decree, and thus owed money to the government and that (ii) she was entitled to ‘whistleblower’ protection and had been wrongfully discharged for investigating the mishandling. Such protections only apply when the investigation is in furtherance of a viable qui tam action.

The government intervened in the suit and dismissed charge i. The District Court also dismissed charge ii because it determined that, even assuming that there was a violation of the consent decree, the Red Cross did not have an obligation to pay anything to the government. The terms of the consent decree stated that the FDA may assess a fine, not that it will – the panel finds this to mean that there is no obligation to pay money, thus no viable FCA action, thus no protections.

Judge Tatel, dissenting on this point, notes that the circuits are split on what constitutes an obligation under the FCA: “Moreover, we must keep in mind that nearly all employees who investigate and bring fraud claims are laypeople, not lawyers. Expecting laypeople to know with any degree of certainty whether their employers' actions violate the FCA's often vague provisions is simply unrealistic, especially when courts themselves disagree over what constitutes a viable FCA claim." (citations omitted)