• This is not a constitutional law class, so I do not need to see you analyze the constitutional validity of qui tam actions. The question was how you raise it and present the arguments (whatever they may be).
• The question said the defendant wanted to challenge constitutionality, not the sufficiency of the allegations. So no reason to discuss 9(b). Plus, you only had part of the complaint, so there was no way to evaluate the allegations that you did not see. The *** indicates omitted stuff.
• Give rules and define terms. What is an affirmative defense? Why is this an affirmative defense? Then you can start talking about how to raise it. Don't assume the legal principles are obvious. What is a "built-in" defense and how does that affect your analysis.
• Legal principles--such as the meaning of Article II--are not facts. They are law that the court looks at when evaluating a pleading based on the facts.
Fluor Corp. (“Fluor”) can raise the unconstitutionality of § 3730(b) and (d) as an affirmative defense—on a Motion to Dismiss under FRCP 12(b)(6) or on a Motion for Judgment on the Pleadings under FRCP 12(c) after filing an Answer to the Complaint.
A defendant must state its defenses to claims in short and plain terms. FRCP 8(b)(1)(A). A defendant can raise an affirmative defense, or avoidance, against a claim for relief. FRCP 8(c). An affirmative defense provides “allegations or statements of new matter, in opposition to former pleading which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect.” Colloquially, through an affirmative defense, a defending party argues “yes, but”: “Yes, the facts in the complaint are true and ordinarily would subject the defendant to liability, but there is another legal or factual issue that allows him to avoid liability.” The defendant bears the burden of pleading the affirmative defense and facts supporting the affirmative defense and the burden of proving those facts at trial.
FRCP 8(c) lists several affirmative defenses that a party must include in its responsive pleading. Affirmative defenses raised in an answer “includ[e]” those listed, indicating the list is non-exhaustive; defendant can assert other affirmative defenses recognized by applicable substantive law.
The constitutionality of a federal statutes qualifies as an affirmative defense. Although not listed in FRCP 8(c), a defendant may raise the Constitution in defending itself against any civil action brought under and seeking to enforce an unconstitutional law. Chamber of Commerce. The defense invokes new legal matter—legal principles of the scope of the President’s Article II powers and the Take Care Clause—in opposition to the allegations of a violation of the False Claims Act in the complaint. Even admitting those facts, Fluor cannot be liable on the FCA claim because private plaintiffs cannot, consistent with the Constitution, bring this suit or recover for fraud on the United States. While the facts in the Complaint, taken as true, ordinarily might establish FCA liability to the private plaintiff, the distinct legal issue of Article II protects Fluor from liability.
Affirmative defenses interact with the concept of failure to state a claim upon which relief can be granted. FRCP 12(b)(6). An affirmative defense provides the reason that the pleading fails to state a claim upon which relief can be granted. Accepting the allegations in the Complaint as true, it fails to state a claim because the legal and factual issues raised by the outside affirmative defense preclude the plaintiff from recovery and relief, despite what the claim-creating rule ordinarily provides on the facts alleged in the Complaint. Because of the affirmative defense, the plaintiff fails to plead a claim for relief plausible on its face. Twiqbal.
A defendant can raise an affirmative defense and have the court act on it in one of two ways.
Under the more common approach, the defendant pleads the affirmative defense and any supporting facts in a responsive pleading, in this case, the Answer to the Complaint. (FRCP 7(a)(2)). The defendant moves for Judgment on the Pleadings on the affirmative defense (FRCP 12(c)), arguing that the facts in all the pleadings, in light of the law of the affirmative defense, establish the affirmative defense and require entry of judgment for defendant. The court may give the plaintiff an opportunity to file a Reply to an Answer (FRCP 7(a)(7)) to respond to the new facts alleged in support of the affirmative defense. Once the plaintiff has responded, the court can look at all three pleadings (Complaint, Answer, and Reply to the Answer) and determine whether the allegations show a dispute over the facts supporting the affirmative defense.
Fluor can file an Answer to the Complaint pleading the affirmative defense of the FCA’s constitutional invalidity. This is a pure question of law, Chamber of Commerce, and Fluor need not plead additional facts supporting the defense. The court also need not require a Reply to an Answer, since there are no new facts to which to respond. The court can resolve the pure legal question of whether § 3730(b) and (d) violate Article II and the separation of powers.
Alternatively, defendant can raise an affirmative defense via a pre-Answer FRCP 12(b)(6) motion to dismiss for failure to state a claim. On a 12(b)(6) motion, the court looks at the facts appearing in the four corners of the complaint. FRCP 12(d). Defendant may raise “built-in defenses”—affirmative defenses built into the claim because the Complaint pleads the facts supporting the affirmative defense. In resolving a 12(b)(6) motion, the court takes all non-conclusory facts as true (Twiqbal)—including the facts supporting the affirmative defense. This motion argues that the facts in the Complaint, taken as true, establish the affirmative defense. This option is not available, however, where the Complaint does not include facts necessary to the affirmative defense.
Fluor can pursue this second approach because the affirmative defense of a law’s unconstitutionality is built into any claim under that law. The defense involves a pure legal question for the court, Chamber of Commerce, requiring no new facts. The Complaint asserts a qui tam claim under the FCA by a private plaintiff. (¶¶ 4-5). The court can look at the FCA as applicable law, compare it with the Constitution, and determine whether the FCA is consistent with Article II, without looking beyond the four corners of the complaint. If the court decides the qui tam provisions violate Article II, the pleading asserting a qui tam action fails to state a claim upon which relief can be granted and must be dismissed.
