AG calls congressional candidate's lawsuit against governor 'parasitic,' 'opportunistic'

Algernon D'Ammassa
Las Cruces Sun-News
Former New Mexico Land Commissioner Aubrey Dunn speaks at a press conference near the U.S.-Mexico border in Doña Ana County on Tuesday, March 6, 2018. Dunn is currently running for Congress as an independent in the June 1, 2021 special election in New Mexico 1st congressional district.

SOCORRO – At first glance, a curious filing in New Mexico's 7th Judicial District gave the impression that the state was suing Gov. Michelle Lujan Grisham.

Adding to the mystery, the civil complaint was filed under seal. 

Details began to emerge after the New Mexico Attorney General's Office filed a motion to dismiss the complaint, revealing that the actual plaintiff in "State of New Mexico, et. al., v. Michelle Lujan Grisham" is former state Land Commissioner, and current independent congressional candidate,  Aubrey L. Dunn Jr.

Dunn filed the complaint using a legal mechanism under statute known as qui tam

The state's Fraud Against Taxpayers Act allows private citizens to file litigation on behalf of the state or a political subdivision — and to receive up to 25 percent of any monetary recovery awarded. 

Such complaints remain under seal for at least 60 days, per the statute, and are served to the state attorney general along with all material evidence and relevant information. The seal is lifted after the AG advises the court whether the office will proceed with the case. 

The New Mexico Attorney General's Office did not respond to a query for this story.

Qui tam empowers whistleblowers

Dunn is being represented in court by his son, Albuquerque attorney A. Blair Dunn, who told the Sun-News he has assisted in qui tam actions in both state and, more typically, federal courts.

"It's essentially a citizen-driven prosecution," Dunn said, in cases when "either a private company or private individual is defrauding the taxpayers — or a government official is defrauding the taxpayers."

According to a January report by the U.S. Department of Justice, there were 672 federal qui tam lawsuits filed in fiscal year 2020, with $1.6 billion in taxpayer funds recovered that year. The whistleblowers presenting those cases receive between 15 and 30 percent of that recovery. 

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On May 5, for example, the DOJ announced a $10 million settlement in a Medicare fraud lawsuit initiated by an anesthesiologist in a qui tam action in Arizona. 

University of New Mexico law professor Joshua Kastenberg, who served as a lawyer and judge in the U.S. Air Force over 20 years, recalled a $117 million judgment against a federal defense contractor thanks to a "fairly new government employee who caught something none of the other experts caught," and collected approximately $250,000.

"It's very narrow and it's very rare," Kastenberg said, "because if two neighbors don't like each other you can imagine what they'll do in the courts."

Aubrey Dunn, then New Mexico's public land commissioner and a U.S. Senate candidate, installed a "No Trespassing" sign on a parcel of land on the U.S.-Mexico border near the Santa Teresa Port of Entry, saying the U.S. Border Patrol — which uses that land to patrol the border — doesn't have the right of way. Dunn spoke to reporters at the location on Tuesday, March 6, 2018.

Qui tam has historical roots in English common law, which allowed individuals to prosecute other individuals on behalf of the government, but Kastenberg said U.S. law largely abolished that ability. 

"You can imagine that courts could become a substitute for dueling if you allowed that to happen," he said, "so out of fairness, the American view of law was to not permit that."

Qui tamon the other hand, is a mechanism "designed to get citizens involved in enforcing revenue collection," Kastenberg said, when they have knowledge of fraudulent use of taxpayer dollars that the government has missed. 

There are statutory limits on its use, however, to prevent spurious lawsuits or abuse of the mechanism by enterprising citizens. 

"There may be a small number of people who try to make a living off of these things. There are a few law firms around the country dedicated to this; but I really don't think you can make a living at this," Kastenberg said.

'An opportunistic and parasitic suit'

The Attorney General's Office says Dunn is no whistleblower.

Assistant Attorney General Brian Moore wrote in the motion for dismissal that Dunn's case was "an opportunistic and parasitic suit based on facts that were reported in news media and known to the Attorney General at the time the complaint was filed."

Specifically, Moore wrote that the eight-page complaint served to the AG's office did not include any material evidence beyond hyperlinks to a February 17 news article published on KOB.com detailing an investigative report by television news station KOB 4.

New Mexico Gov. Michelle Lujan Grisham speaks outside the state Capitol building in Santa Fe, N.M., on Monday, April 12, 2021.

KOB's report detailed expenditures from the governor's contingency fund for dry cleaning, grocery items, including expensive steaks, and alcohol purchases during 2020. The publicly funded account is intended for events or expenditures that promote the state. Lujan Grisham later expressed regret, saying staff had made the purchases for a planned post-pandemic celebratory event.

Moore argued that Dunn did not provide any information unknown to the government, nor any information beyond what was reported by KOB. 

Allowing the lawsuit to move forward, Moore said, "would incentivize other would-be qui tam plaintiffs to file future FATA lawsuits based only on the prior work of investigative journalists."

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Dunn alleged that the governor's office had failed to comply with public records requests that would have allowed the elder Dunn to investigate further. 

Aubrey Dunn, whose father served 15 years in the New Mexico state senate, was elected as the state's public lands commissioner in 2014 as a Republican. While serving a single term in office, he switched his affiliation to the Libertarian Party in 2018, when he launched and then withdrew a campaign for U.S. Senate seat.  

He is currently running as an independent for New Mexico's open U.S. House seat in New Mexico's 1st congressional district.

The seat has been vacated by former Rep. Debra Haaland following her confirmation as U.S. Interior Secretary. Her successor will be chosen in a June 1 special election.

Algernon D'Ammassa can be reached at 575-541-5451, adammassa@lcsun-news.com or @AlgernonWrites on Twitter.