2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 9 - Fraud Against Taxpayers Act
Section 44-9-9 - Certain actions barred.

A. No court shall have jurisdiction over an action brought pursuant to Section 44-9-5 NMSA 1978 by a present or former employee of the state or political subdivision unless the employee, during employment with the state or political subdivision and in good faith, exhausted existing internal procedures for reporting false claims and the state or political subdivision failed to act on the information provided within a reasonable period of time.

B. No court shall have jurisdiction over an action brought pursuant to Section 44-9-5 NMSA 1978 against an elected or appointed state official, a member of the state legislature or a member of the judiciary if the action is based on evidence or information known to the state agency to which the false claim was made or to the attorney general when the action was filed.

C. Unless the attorney general or political subdivision determines and certifies in writing that the action is in the interest of the state or political subdivision, no court shall have jurisdiction over an action brought pursuant to Section 44-9-5 NMSA 1978 when that action is based on allegations or transactions that are the subject of a criminal, civil or administrative proceeding in which the state or political subdivision is a party.

D. Upon motion of the attorney general or political subdivision, a court may, in its discretion, dismiss an action brought pursuant to Section 44-9-5 NMSA 1978 if the elements of the alleged false or fraudulent claim have been publicly disclosed in the news media or in a publicly disseminated governmental report at the time the complaint is filed.

History: Laws 2007, ch. 40, § 9; 2015, ch. 128, § 8.

The 2015 amendment, effective June 19, 2015, included political subdivisions in the provision that bars certain actions pursuant to the Fraud Against Taxpayer Act; added "or political subdivision" throughout the section; in Subsection A, after "Section", deleted "5 of the Fraud Against Taxpayers Act" and added "44-9-5 NMSA 1978"; in Subsection B, after "Section", deleted "5 of the Fraud Against Taxpayers Act" and added "44-9-5 NMSA 1978"; in Subsection C, after "Section", deleted "5 of the Fraud Against Taxpayers Act" and added "44-9-5 NMSA 1978"; and in Subsection D, after "Section", deleted "5 of the Fraud Against Taxpayers Act" and added "44-9-5 NMSA 1978".

Certain actions are barred. — For an action to be barred under Subsection B of this section, the action must be against a state official and be based on evidence or information known to the attorney general when the action was filed. State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2015-NMSC-025, aff'g in part, rev'g in part, 2013-NMCA-043, 297 P.3d 357.

Where plaintiff, the former chief investment officer of the New Mexico education retirement board, filed a qui tam action, alleging that defendants, which included certain state officials, executed fraudulent schemes that led to the loss of hundreds of millions of dollars at the expense of the state investment council and the education retirement board, the attorney general's prior knowledge of incriminating information did not bar the qui tam action because the attorney general's information was based on a prior qui tam action filed by plaintiff. Plaintiff was therefore not piggybacking off the claims of a prior relator in an effort to recover a portion of the prior relator's damage award. Moreover, plaintiff may have had genuine, useful information that the government lacked, and the attorney general did not raise an objection to the filing of the second qui tam action. State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2015-NMSC-025, aff'g in part, rev'g in part, 2013-NMCA-043, 297 P.3d 357.

District court has discretion to dismiss a qui tam action if the conditions of Subsection D have been met. — Subsection D of this section is a stand-alone proviso, allowing the district court, in its discretion, to dismiss a qui tam plaintiff's action brought pursuant to the Fraud Against Taxpayers Act, 44-9-1 to 44-9-14 NMSA 1978, if the government moves for dismissal and establishes that the elements of the qui tam plaintiff's fraud claims have been publicly disclosed, and the district court is not obligated to consider other statutory standards or requirements. State v. Foy, 2019-NMCA-045.

Where plaintiffs filed a qui tam action pursuant to the Fraud Against Taxpayers Act, 44-9-1 to 44-9-14 NMSA 1978, against the former Bernalillo county treasurer and others alleging that defendants had conspired to defraud the county, the district court did not abuse its discretion in dismissing plaintiff's complaint, because the county was already pursuing the claims related to the fraud that was the subject of plaintiff's qui tam action, the county's lawsuit was substantially similar to plaintiffs' qui tam action, and there is nothing in the record to indicate that the district court misapprehended the discretionary nature of dismissal under Subsection D of this section. State v. Foy, 2019-NMCA-045.

Where plaintiffs filed a qui tam action pursuant to the Fraud Against Taxpayers Act, 44-9-1 to 44-9-14 NMSA 1978, against the former Bernalillo county treasurer and others alleging that defendants had conspired to defraud the county, the district court did not err in granting the state and county's motion to dismiss without first requiring the state and county to comply with standards and requirements of 44-9-6 NMSA 1978, because Subsection D of this section is a stand-alone proviso, allowing the district court, in its discretion, to dismiss a qui tam plaintiff's Fraud Against Taxpayers Act action if the government moves for dismissal and establishes that the elements of the qui tam plaintiff's fraud claims have been publicly disclosed. State v. Foy, 2019-NMCA-045.