is a tool for establishing vicarious liability, it cannot be maintained in a suit involving a single defendant where the same underlying torts are also asserted by separate counts against the same defendant. See Dowd v. Calabrese, 589 F. Supp. 1206, 1214 (D.D.C. 1984); Willems v. Barclays Bank D.C.O., 263 F. Supp. 774, 776 (S.D.N.Y. 1966).
4. Antitrust (Counts III and IV) :
Boisjoly alleges that MTI conspired with NASA to create and preserve MTI's "illegal posture" as the exclusive supplier of SRM's, thereby violating Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, the Utah Antitrust Act, Utah Code Ann. § 76-10-914, and Article XII, Section 20 of the Utah Constitution.
He further alleges that this practice led to a defective joint design that was the cause of the shuttle accident, and that due to the trauma he suffered as a result of the accident and a subsequent campaign to discredit him in order to cover up the monopolistic arrangement, he is no longer able to pursue his career as an engineer. Thus, Boisjoly claims that due to the alleged anticompetitive practices of MTI and NASA he was injured in his business and property within the meaning of both the federal and Utah statutes and accordingly is entitled to recovery of treble damages. MTI challenges Boisjoly's standing to assert this claim, relying on considerable authority for the proposition that an employee does not normally suffer the kind of injury required by law in order to bring an antitrust action against his employer. As described below, this court holds that Boisjoly has no standing to bring his antitrust claim under federal or state law.
a. Federal Claim
Section 4 of the Clayton Act provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. § 15 (1982). Courts have limited this seemingly broad language by allowing standing only if the alleged injury is the type against which antitrust laws were meant to protect and flows from that which makes the defendant's acts unlawful. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977). The Sherman Act's purpose is to protect consumers from the lack of price competition and to ensure economic freedom to competitors. See Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 538, 74 L. Ed. 2d 723, 103 S. Ct. 897 (1983). Courts have generally allowed standing only to direct purchasers of the subject product or competitors in the relevant market, i.e., those "within that area of the economy . . . endangered by [the] breakdown of competitive conditions." Blue Shield of Virginia, Inc. v. McCready, 457 U.S. 465, 480-81, 73 L. Ed. 2d 149, 102 S. Ct. 2540 (1982) (quoting In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 129 (9th Cir. 1973)). Furthermore, standing will be denied if the claimed injury is too causally remote from the alleged anticompetitive conduct. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 52 L. Ed. 2d 707, 97 S. Ct. 2061 (1977).
Based on these limitations, employees claiming to have suffered injury as a result of the anticompetitive activities of their employer have almost universally been denied standing under the antitrust laws. See, e.g., In re Industrial Gas Antitrust Litigation, 681 F.2d 514 (7th Cir. 1982), cert. denied, 460 U.S. 1016, 75 L. Ed. 2d 487, 103 S. Ct. 1261 (1983) (employee discharged and blacklisted by industry for refusing to participate in antitrust activity lacks standing to bring action against his former employer); McNulty v. Borden, Inc., 542 F. Supp. 655 (E.D. Pa. 1982) (no standing for employee discharged for refusing to participate); see also Perry v. Hartz Mountain Corp., 537 F. Supp. 1387 (S.D. Ind. 1982).
This majority position is followed in the Tenth Circuit. In Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th Cir. 1973), cert. denied, 411 U.S. 938, 36 L. Ed. 2d 399, 93 S. Ct. 1900 (1973), the court relied on the limitations explained above to deny standing to an employee who was discharged when his job became redundant due to the allegedly anticompetitive merger of his employer and another company. In Winther v. DEC International, Inc., 625 F. Supp. 100 (D. Colo. 1985) the court carefully reviewed the existing law and relied in part on the binding authority of Reibert to hold that a salesman discharged for refusing to enforce his employer's anticompetitive practice lacked standing under federal and state antitrust laws.
Based on this authority and the binding precedent of Reibert, this court finds that Boisjoly has no standing to assert his federal antitrust claim. Boisjoly's alleged injury -- that he is unable to pursue his career due to the emotional injury suffered as a result of the Challenger accident and by being discredited by MTI -- is unrelated to price competition or economic freedom among competitors. It is clearly not the type of anticompetitive injury that the antitrust laws were meant to protect against.
In addition, Boisjoly's claimed injury is not the direct result of the alleged anticompetitive activity. See Illinois Brick Co. v. Illinois, supra. His claim rests on the following causal chain: the alleged anticompetitive practice -- the creation and maintenance of MTI's position as the sole source of SRM's -- led to a defective joint design; the defective joint caused the Challenger accident; the accident led to Boisjoly's emotional injury and to MTI's campaign against him; and finally, that the emotional injury and damaged reputation resulted in Boisjoly's inability to practice his profession, thus injuring him in his business and his property. The claimed injury is simply too causally remote from the alleged anticompetitive act to form the basis for standing.
The sole authority in support of Boisjoly's position is the Ninth Circuit's decision in Ostrofe v. H.S. Crocker Co., Inc., 670 F.2d 1378 (1982), vacated, 460 U.S. 1007, 75 L. Ed. 2d 475, 103 S. Ct. 1244 (1983), on remand, 740 F.2d 739 (9th Cir. 1984), cert. denied, 469 U.S. 1200, 84 L. Ed. 2d 309, 105 S. Ct. 1155 (1985). In that case, the court allowed standing to a former employee of a paper label company who alleged he had been discharged and thereafter shunned in the industry because he refused to participate in an anticompetitive bid rigging scheme. Ostrofe clearly contradicts the decision in Reibert, which is controlling precedent in this circuit. Ostrofe's holding is also contrary to virtually all other decisions addressing the issue. Thus, Ostrofe does not affect this court's holding that Boisjoly lacks standing to sue for treble damages under the federal antitrust laws.
b. State Claim
Boisjoly also seeks recovery under the civil damages provision of the Utah Antitrust Act. Utah Code Ann. § 76-10-919 (Supp. 1988). The Act, which is modeled after and closely resembles the federal antitrust statute, expressly provides that it is to be applied and interpreted consistently with its federal counterpart. Utah Code Ann. § 76-10-926. This court sees no reason to rule differently with respect to the state claim than with respect to the federal claim. Consequently, this court holds that Boisjoly also lacks standing to bring a claim under the Utah Antitrust Act.
As to Boisjoly's attempt to recover damages based on the Utah Constitution, this court finds that Article XII, Section 20 does not provide a separate private right of action for damages. Rather, that Section empowers the legislature to pass laws providing the means by which to enforce against antitrust violations such as the Utah Antitrust Act. A private damages action, if any, must arise under a statute thus enacted.
5. Obstruction and Tampering (Count VII) :
Boisjoly alleges that MTI removed him from a position from which he could directly interact with NASA investigators who were responsible for determining the cause of the shuttle accident and for redesigning the defective joints. In addition, Boisjoly alleges that MTI publicly threatened the security of his job. Boisjoly claims that by these actions MTI violated 18 U.S.C §§ 1505, 1512 and 1513 (1982). Section 1505 makes it unlawful and provides criminal penalties for interference with agency investigations, while Sections 1512 and 1513 do the same for actions constituting intimidation, threats, harassment and retaliation against a witness. For the following reasons this court dismisses these claims by concluding that there is no private right of action for damages under these criminal statutes. Therefore, Boisjoly has no standing to maintain this cause of action.
Since it is clear that the statutes in question do not expressly create a private right of action, such a right exists only if it arises by implication. In Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Supreme Court listed four factors to guide judicial determination of whether a private right of action can be implied from a federal statute:
First, is the Plaintiff "one of the class for whose especial benefit the statute was enacted," -- that is, does the statute create a federal right in favor of the Plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the Plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.
Cort, 422 U.S. at 78 (emphasis in original) (citations omitted).
In its more recent application of the Cort analysis, the Court has made increasingly clear that congressional intent, not judicially supplied policy considerations, is to be the basis of such a decision. See, e.g., California v. Sierra Club, 451 U.S. 287, 293, 297, 68 L. Ed. 2d 101, 101 S. Ct. 1775 (1981); Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 15-16, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). This emphasis has caused the Court to focus on the first two Cort factors; only if they are met does the inquiry turn to the last two factors. See California v. Sierra, 451 U.S. at 298; Touche Ross, 442 U.S. at 574-76.
Applying this analysis to the present case, this court need only focus on the second Cort factor in order to find that the statutes at issue do not create a private cause of action. Even assuming that the first Cort factor is met, i.e., that Boisjoly's alleged status as an injured witness places him in a class of plaintiffs who have a federal right under Sections 1505, 1512 or 1513, the total lack of evidence in support of the second and most important factor is fatal to an implication of a private right of action.
The second Cort factor focuses on the statute itself, and then its legislative history, for evidence that Congress intended that there be a private right of action. In regard to the statutory analysis, this court bears in mind that it must be particularly wary of implying an additional right of action when Congress has already expressly provided a particular remedy or remedies for the statute's violation. Transamerica, 444 U.S. at 19. In such a case, there is effectively a presumption that no additional remedy was intended unless the legislative history contains persuasive evidence to the contrary. Id.
In the present case, Congress provided for substantial criminal penalties, including both fines and imprisonment, for violations of Sections 1505, 1512 and 1513. In addition, a statute specifically authorizes the Attorney General to obtain a restraining order in a civil action in order to prevent a violation of those provisions. 18 U.S.C § 1514 (1982). Upon conviction, a violator must pay restitution to a person harmed by his actions. 18 U.S.C. §§ 3579, 3580 (1982). In light of the existence of these express remedies, and the absence of any express indication of a private right of action, such a right cannot be implied from the statute itself.
An examination of the relevant legislative history similarly contains no evidence of congressional intent or expectation that there be a private right of action. Section 1505's history is bereft of any reference that might imply a private right of action. See S. Rep. No. 225, 79th Cong., 1st Sess. (1945); H.R. Rep. No. 1143, 76th Cong., 1st Sess. (1939).
Similarly, the legislative history of Sections 1512 and 1513, provisions of the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 1512-1515, 3579-3580 (1982) ("V.W.P.A."), gives no indication that Congress intended that an injured witness or victim have a right to sue for damages under the statute. If anything, the history of the V.W.P.A. shows the opposite to be true. It reveals that Congress chose not to expressly provide for a private right of action despite its knowledge of and consideration of the fact that courts had universally denied a private right of action under 18 U.S.C § 1503, the provision that the V.W.P.A. replaced. See S. Rep. No. 532, 97th Congress 2d Sess. 28 & n.23 (1982).
In sum, based on the existence and comprehensiveness of the express criminal and civil remedies provided by Congress for violation of the statutes at issue, the lack of anything in the legislative history implying that Congress intended that there be a private right of action for damages, and the fact that Congress failed to provide for such a remedy when it revamped the witness protection statute by passage of the V.W.P.A. in 1982, despite knowing and having considered that such a right had been denied under existing law, the court concludes that there is no implied private right of action under Sections 1505, 1512 or 1513. Accordingly, Count VII is dismissed with prejudice.
C. Qui Tam Action :
In addition to his private action, Boisjoly seeks to invoke the False Claims Act, 31 U.S.C.A. §§ 3729 to 3733 (West Supp. 1988)
("FCA"), against defendant MTI. The FCA allows the Government, in a civil action instituted by the United States Attorney General, to recover damages and penalties from those who knowingly submit or cause to be submitted false or fraudulent claims for payment to the Government. 31 U.S.C.A. § 3729. The FCA also allows private citizens to initiate and prosecute FCA actions on behalf of the Government, referred to as " qui tam " actions, and to share in any recovery that is eventually awarded. 31 U.S.C.A. § 3730(b), (d). Boisjoly seeks recovery in this action pursuant to the qui tam provisions.
MTI moves to dismiss the FCA claim and to strike portions of the prayer for relief pursuant to rules 12(b) and 12(f) of the Federal Rules of Civil Procedure. As explained below, this court finds that Boisjoly does not state a claim under the FCA.
In order to recover under the FCA it must be alleged and proved that defendant
(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; [or]
(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid. . .