Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 1 of 6

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1 Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 1 of 6 Civil Action No. 04-cv REB-CBS UNITED STATES OF AMERICA, ex rel. BOBBY L. MAXWELL v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn KERR-MCGEE OIL & GAS CORPORATION, a Delaware corporation Defendant. DEFENDANT S RESPONSE TO RELATOR S RENEWED MOTION FOR ENTRY OF JUDGMENT Defendant Kerr-McGee Oil & Gas Corporation ( Kerr-McGee or Defendant ) submits the following Response to the Renewed Motion for Entry of Judgment filed by Relator Bobby L. Maxwell ( Maxwell or Relator ) on November 4, 2009 (Dkt. 313). 1 In his Renewed Motion for Entry of Judgment, Maxwell relies on his prior briefing and oral argument with respect to judgment formation issues. Kerr-McGee likewise directs this Court s attention to its prior briefing and oral argument concerning issues relating to judgment formation. Specifically, Kerr-McGee relies on the following: Defendant s Response to Relator s Brief and Response to the Position of the United States Regarding the Form of Judgment, filed on February 16, 2007 (Dkt. 220); 1 Kerr-McGee is filing this Response subject to its Notice of Corporate Relationship (also filed today) and subject to its Notice of Appeal (Dkt. 310), which it filed on October 29, Kerr-McGee has filed a Motion to Stay or Abate the Appeal in the Tenth Circuit asking that Court to allow this Court to proceed with the entry of judgment and other related matters. However, the Tenth Circuit has not yet ruled on Kerr-McGee s Motion to Stay or Abate the Appeal or on Maxwell s related Motion to Dismiss Appeal, although the Tenth Circuit has tolled briefing pending further order of the Court, presumably while the Tenth Circuit considers those motions.

2 Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 2 of 6 the oral arguments presented concerning judgment formation issues at the hearing held before the late Honorable Judge Figa on March 1, 2007 (Dkt. 229, pages 46-65); and Defendant Kerr-McGee Oil & Gas Corporation s Response to Relator s Supplemental Brief Regarding the Form of Judgment, filed April 3, 2009 (Dkt. 289). The jury returned a verdict against Kerr-McGee in the amount of $7,555, (Dkt. 198). Maxwell initially sought a judgment of approximately $39.9 million based on that verdict (Dkt. 225 at 24), but now asks for more than $50 million. (Dkt. 288 at 14-15, Dkt. 289 at 3-4, Dkt. 313 at 6-7). The enormous judgment sought by Maxwell is based on his request for (1) enhanced treble damages of approximately $34.5 million, (2) more than $15 million in civil penalties for 1,403 alleged statutory violations (even though, at most, 48 violations occurred), (3) a pre-judgment interest award (disguised as late payment charges) of almost $4 million (even though prejudgment interest clearly is not available under the False Claims Act), and (4) post-judgment interest of more than $700,000 (even though no judgment has yet been entered). (Dkt. 288 at 14-15, Dkt. 289 at 3-4, 6-7 & n. 2, 9-10, 12-13, Dkt. 313 at 6-7). Maxwell also has indicated that he intends to seek a substantial award of attorneys fees. The amounts sought by Maxwell are unwarranted, particularly given that the U.S. agency in charge of determining and collecting royalties (the MMS) concluded, after a thorough investigation and review, that Kerr-McGee had paid all the royalties it owed under the applicable regulations. (Dkt. 289 at 2). The Inspector General of the Department of the Interior conducted a separate independent investigation and also determined that Maxwell s complaints lacked merit. (Dkt. 289 at 2). Any underpayment by Kerr-McGee was the result of differing interpretations of complex regulatory 2

3 Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 3 of 6 provisions. The Department of the Interior, the MMS, and Kerr-McGee all interpreted the government regulatory provisions one way, while the lay jury (which did not have the benefit of having a copy of the actual regulations) interpreted the regulations another way, but there is nothing nefarious about the events that led to Kerr-McGee s alleged underpayment. The penalties and enhanced damages sought by Maxwell are insupportable. The only new authorities that Maxwell cites in his Renewed Motion for Entry of Judgment with respect to judgment formation issues relate to his contention that he is entitled to post-judgment interest as of the date of the Tenth Circuit s mandate on February 13, 2009, even though no judgment has been entered. (Dkt. 313 at 4). Maxwell suggests that he can create a judgment where no judgment exists based on nunc pro tunc principles. Those principles, however, have no application in this situation. A nunc pro tunc order memorarilizes court action previously taken, but not properly recorded. It cannot be used where a court refused to act or to correct an action taken by the court. See Cypress Barn, Inc. v. Western Electric Co., 812 F.2d 1363, 1364 (11th Cir. 1987). As the Tenth Circuit has held, an order may be entered nunc pro tunc to make the record speak the truth but it cannot supply an order which, in fact, was not previously made. Crosby v. Mills, 413 F.2d 1273, 1277 (10th Cir. 1969). (See Dkt. 289 at & n. 5 discussing additional Tenth Circuit nunc pro tunc cases). The cases cited by Maxwell are of no help to him. None of the cases relied on by Maxwell involves the use of the nunc pro tunc doctrine to backdate a judgment to allow the plaintiff to obtain more post-judgment interest. Middleton v. Dan River, Inc., 617 F. Supp. 1206, (M.D. Ala. 1985), and Patton v. Denver Post Corporation, 326 3

4 Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 4 of 6 F.3d 1148, (10 th Cir. 2003), both involve a specialized version of the nunc pro tunc doctrine that applies where a prospective party to a judgment or order has died before the entry of the judgment or order. The D.C. Circuit s decision in Weil v. Markowitz, 829 F.2d 166 (D.C. Cir. 1987), involves the unusual circumstance that the government had received nunc pro tunc relief itself, leading the court to conclude, If the government can move the calendar back one year there is no reason why the appellants should not have an opportunity for similar relief. Id. at 175. Thus, the analysis in Markowitz seems to involve an estoppel component. Under Tenth Circuit law, nunc pro tunc orders are used to correct clerical errors, but no clerical error occurred here. (Dkt. 289 at & n. 5). Neither this Court nor the Tenth Circuit intended to enter judgment in favor of Maxwell. Indeed, significant judgment formation issues remain to be resolved before any judgment can be entered. A nunc pro tunc order cannot be used to create out of thin air a judgment that never existed and was never intended to exist. Maxwell is entitled to post-judgment interest, if at all, only from the date that this Court might choose to enter judgment in his favor. In light of the complexity of the judgment formation issues involved in this case and the huge damages sought by Maxwell, Kerr-McGee submits that an oral hearing would be useful and beneficial. Accordingly, Kerr-McGee is requesting an oral hearing on judgment formation issues in a separately filed motion. CONCLUSION For the foregoing reasons and for the reasons set forth in Kerr-McGee s prior briefing and arguments regarding judgment formation, Maxwell s request for the entry of a judgment for more than $50 million should be denied. 4

5 Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 5 of 6 Dated: November 24, 2009 Respectfully submitted, s/ Marie R. Yeates Scott S. Barker Marie R. Yeates Gregory E. Goldberg VINSON & ELKINS L.L.P. Danielle R. Voorhees 1001 Fannin Street, Suite 2500 HOLLAND & HART LLP Houston, Texas Seventeenth Street, Suite Post Office Box (fax) Denver, Colorado myeates@velaw.com (fax) Charles D. Tetrault sbarker@hollandhart.com VINSON & ELKINS L.L.P. ggoldberg@hollandhart.com The Willard Office Building dvoorhes@hollandhart.com 1455 Pennsylvania Ave. N.W. Washington, D.C (fax) ctetrault@velaw.com Attorneys for Kerr-McGee Oil & Gas Corporation 5

6 Case 1:04-cv MSK -CBS Document 317 Filed 11/24/09 USDC Colorado Page 6 of 6 CERTIFICATE OF SERVICE I certify that, on November 24, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF system, which will send notification of such filing to the following addresses: Michael S. Porter Richard C. LaFond, Esq. Daniel M. Reilly Matthew D. Spohn Lisa Christian, Esq. Peter T. Wechsler, Esq. William Edgar, Esq. Michael J. Norton Raymond Myles Deeny Jennifer Michelle Osgood Andrew Wayne Volin porterlaw@comcast.net richardlafondpc@gmail.com dreilly@rplaw.com mspohn@rplaw.com Lisa.christian@usdoj.gov Peter.wechsler@usdoj.gov William.edgar@usdoj.gov mjnorton@bfw-law.com rdeeny@sah.com josgood@bfw-law.com avolin@sah.com US v1 s/ Marie R. Yeates Marie R. Yeates 6