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Nevada’s FCA permits the Attorney General, or a private “qui tam” plaintiff acting on his own behalf and on that of the State, to maintain an action for treble damages against “a person” who, among other things, presents a false claim for payment or approval, uses a false record or statement to obtain payment or approval of a false claim, or is the beneficiary of and fails to disclose after discovery of, an inadvertent submission of a false claim.[5] The FCA defines “claim” as “a request or demand for money, property or services made to . . . [a]n officer, employee or agent of this state . . . or . . . [a] contractor, grantee or other recipient of money from the State . . . if any part of the money . . . was provided by the State.”[6]
Although the FCA does not likewise define the term “person,” a long-standing principle of statutory construction instructs that “‘person’ does not include the sovereign.”[7] While we have previously only had occasion to apply this principle in the context of statutory civil rights law, it applies equally to any statute.[8] Thus, unless a statute expressly indicates otherwise, we will presume that the statute does not confer “person” status on a state entity.[9] Here, the FCA contains no express language specifying that the term “person” includes state entities, and therefore we presume that the Legislature did not intend to subject the State to FCA liability.
While we acknowledge that this presumption is “not a ‘hard and fast rule of exclusion,’”[10] we conclude that the FCA’s policy to recover state funds further supports the presumption’s use here. It would simply make no sense to interpret the FCA to allow the Attorney General or a private plaintiff, acting on the State’s behalf, to sue a state entity to recover state funds; a successful action would not actually “recover” funds for the State, but would rather merely require the State to reallocate resources between state entities while expending funds for litigation costs and amounts awarded to a private plaintiff under the FCA.[11]
Moreover, this court has recognized that Nevada’s FCA is modeled after the federal FCA,[12] which the United States Supreme Court has interpreted as excluding states and state entities, but not local governments, from the definition of “person.”[13] Although the Supreme Court’s reasoning is not entirely relevant in the context of Nevada’s FCA,[14] it does define language in the act upon which Nevada’s FCA is expressly modeled, and thus we may look to it for guidance.[15]
Part of the Supreme Court’s reasoning observes that the original federal FCA contained no express provision to overcome the presumption that states are not “persons” for purposes of qui tam liability, even though a separate federal FCA provision granting the Attorney General permission to instigate civil investigations with “any person” specifically defined “person” in that context to include states.[16] Because Congress had expressly defined “person” to include states in the investigative context, but not elsewhere in the FCA, the Supreme Court reasoned that the absence of a similar definition with respect to the liability provision revealed that the liability provision was not intended to include states.[17] Further, that Court noted that, despite subsequently making various changes to the liability provision, Congress never expanded the meaning of “person” to include states.[18]
Correspondingly, because in drafting Nevada’s FCA the Nevada Legislature looked to the federal FCA, the Legislature necessarily examined the federal act’s definitions. Having thus considered the federal FCA’s definition of “person” that expressly included state entities in the investigative context, the Legislature nevertheless chose not to similarly define “person” in the Nevada FCA’s liability provision. Consequently, we see no reason to depart from the presumption that state entities are not “persons” under Nevada’s FCA; therefore, state entities are not subject to FCA liability.[19]
UCCSN is a state entity
UCCSN is comprised of the system of universities, colleges, administrative services, research facilities, and departments within the public service division, and it is administered by the Board of Regents[20]—the group of persons constitutionally authorized to control and manage the state university system.[21] At least to the extent that other funds are inadequate, the Legislature must “provide for [the] support and maintenance” of the system.[22] To obtain maintenance and support from the state, UCCSN must apply for “direct legislative appropriation from the general fund, upon the presentation of budgets in the manner required by law.”[23] The Board of Regents must biennially present a four-year plan to the Legislature,[24] and the Governor must be supplied with minutes of the Board’s meetings.[25] The Board members function as trustees over the system’s funds[26] but are subject to specific rules governing university securities.[27]
Based on the decisional law of this state and other jurisdictions, UCCSN is a state entity. In Northern Nevada Association of Injured Workers v. SIIS ,[28] this court concluded that the former State Industrial Insurance System was a state agency because it (1) was “subject to the approval and control of the Governor, the legislature, and other agencies of the government”; (2) was “treated as the State or a state agency throughout the Nevada Revised Statutes”; and (3) possessed certain sovereign powers.[29] Similarly, UCCSN is: (1) subject to the approval and control of the state government;[30] (2) at least in some limited fashion, treated as a state entity within the Nevada Revised Statutes;[31] and (3) through its Board, in possession of some sovereign powers.[32]
Moreover, although we have not previously examined UCCSN’s state entity status, federal district courts in Nevada have concluded that UCCSN, UNR, and the Board of Regents are “state instrumentalities” for Eleventh Amendment purposes.[33] Other courts have also concluded that state universities are part of the state government under the Eleventh Amendment.[34] Because the analysis for determining an entity’s status for Eleventh Amendment purposes is similar to the distinctions made for FCA purposes— i.e. , state entities are entitled to immunity while local governments are not—determinations made for Eleventh Amendment purposes are germane to determinations in FCA cases.[35] Thus, these determinations strongly support the view that UCCSN has state entity status for FCA liability purposes.
For the foregoing reasons, we conclude that UCCSN is a state entity. Since state entities are not “persons” subject to FCA liability, the district court properly determined that UCCSN was entitled to judgment as a matter of law on Simonian’s FCA claim.
Sanctions
In addition to granting summary judgment, however, the district court also determined that Simonian’s “claim [was] not well-grounded in fact or in existing law.” Consequently, the court sanctioned Simonian, awarding $2,452.50 in attorney fees to UCCSN under NRCP 11(c) and NRS 357.180(2), which allow a party to be awarded attorney fees for defending an action brought on baseless grounds or for improper purposes. In so doing, the court noted that Simonian had instituted four proceedings against UCCSN regarding its part-time instructors’ salaries, none of which was successfully prosecuted. The court made no other findings.
Both NRCP 11 and NRS 357.180 sanctions are reviewed under an abuse of discretion standard.[36] In 2002, NRCP 11 sanctions, including attorney fees, could be imposed on a litigant for filing a pleading that was not “well-grounded in fact and . . . warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.”[37] Under NRS 357.180(2), the court may award a prevailing defendant reasonable expenses and attorney fees “if it finds that the action w
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