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U.S. EX REL. BURLBAW v. ORENDUFF

Nos. 05-2393, 06-2006.

548 F.3d 931 (2008)

UNITED STATES ex rel. Edward J. BURLBAW and Donald D. Bustamante, Plaintiffs-Appellants/Cross-Appellees, v. J. Michael ORENDUFF, in his individual capacity; William Conroy, in his individual capacity; Robert E. Weigle, in his individual capacity; Linda Davidson, the Personal Representative of the Estate of Thomas Davidson, in his individual capacity; Donald Birx, in his individual capacity; Miriam A. Gerber Meyer, in her individual capacity, Defendants-Appellees/Cross-Appellants. United States of America, Amicus Curiae.

United States Court of Appeals, Tenth Circuit.

November 28, 2008.

Attorney(s) appearing for the Case

Duff Westbrook of Sanders & Westbrook, P.C., Albuquerque, NM (Maureen A. Sanders, Sanders & Westbrook, P.C., and Joleen K. Youngers, Almanzar & Youngers, P.A., Las Cruces, NM, with him on the briefs), for Plaintiffs-Appellants/Cross-Appellees.

Kenneth L. Harrigan, Modrall, Sperling Roehl Harris & Sisk, P.A., Albuquerque, NM (Stephen S. Hamilton and Andrew S. Montgomery, Montgomery & Andrews, P.A., Santa Fe, NM; Alex C. Walker, Modrall, Sperling Roehl Harris & Sisk, P.A.; with him on the briefs), for Defendants-Appellees/Cross-Appellants.

Michael S. Raab, Appellate Staff, Civil Division, U.S. Department of Justice, Washington D.C. (Peter D. Keisler, Assistant Attorney General, and David C. Iglesias, United States Attorney, with him on the brief), for the United States of America as amicus curiae.

Before TACHA, TYMKOVICH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Plaintiffs-Appellants Edward Burlbaw and Donald Bustamante ("relators") challenge the district court's grant of summary judgment on their claims under the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-3733. Relators alleged that defendants, past and present high-ranking administrators of New Mexico State University ("NMSU"), falsely certified that NMSU was a "minority institution" eligible for

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