Brown v. Sherrod , 284 F. App'x 542 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 7, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SHERWOOD BROWN,
Plaintiff - Appellant, No. 08-6028
v. W.D. Okla.
JOSEPH MICHAEL SHERROD, (D.C. No. 07-CV-01162-HE)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, and upon the court’s own
motion, this panel determined that oral argument would not materially assist in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G).
Sherwood Brown, appearing pro se, appeals from the district court’s
dismissal of his complaint for failure to state a claim. We affirm.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
We review the district court’s dismissal of Brown’s complaint pursuant to
Rule 12(b)(6) de novo. Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir.
2006). We accept all well-pleaded allegations as true and view them in the light
most favorable to Brown. Id. Because Brown appears pro se, “we review his
pleadings and other papers liberally and hold them to a less stringent standard
than those drafted by attorneys.” Id. Dismissal of a complaint under Rule
12(b)(6) for failure to state a claim is proper only where it is obvious that the
plaintiff failed to set forth “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
Brown filed a claim under the False Claims Act pursuant to 31 U.S.C.
§§ 3729 and 3730. Section 3729(a)(1) provides a cause of action against any
person who “knowingly presents, or causes to be presented . . . to the United
States Government . . . a false or fraudulent claim for payment.” Section 3730(b)
allows a private person to bring a qui tam action on behalf of the United States
Government for a violation of § 3729. Section 3730(d) provides “[t]he action
may be dismissed only if the court and the Attorney General give written consent
to the dismissal and their reasons for consenting.”
Upon the defendant’s motion, the district court dismissed Brown’s case
because his complaint failed to allege the defendant requested or received
payment from the government. Rather, Brown alleged the defendant falsely filed
a bankruptcy claim but did not allege, nor did the record demonstrate, the
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government was a creditor.
On appeal, Brown claims the dismissal was improper because the district
court did not have the consent of the Attorney General. The consent of the
Attorney General is required only where the plaintiff seeks a voluntary dismissal
of the action, not where the district court grants a defendant’s motion to dismiss
for failure to state a claim. See Drake v. Norden Sys., Inc., 375 F.3d 248, 254 n.1
(2d Cir. 2004) (citing Minotti v. Lensink, 895 F.2d 100, 103-04 (2d Cir. 1990));
Shaver v. Lucas Western Corp., 237 F.3d 932, 934 (8th Cir. 2001).
AFFIRMED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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