Helpful Articles
Combating Government Corruption: Suing the Federal Government Via a Proposed Amendment to the Civil RICO Statute
Valparaiso University Law Review Volume 46 Number 1 pp.169-210 Fall 2011 Combating Government Corruption: Suing the Federal Government Via a Proposed Amendment to the Civil RICO Statute Arie J. Lipinski This Notes is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. Recommended Citation Arie J. Lipinski, Combating Government Corruption: Suing the Federal Government Via a Proposed Amendment to the Civil RICO Statute, 46 Val. U. L. Rev. 169 (2011). Available at: http://scholar.valpo.edu/vulr/vol46/iss1/6 169 COMBATING GOVERNMENT CORRUPTION: SUING THE FEDERAL GOVERNMENT VIA A PROPOSED AMENDMENT TO THE CIVIL RICO STATUTE I. INTRODUCTION A freely associated group of criminals claims sovereignty over a poverty-stricken neighborhood in New York City.1 This family of lawbreakers, commonly known as the Mafia, possesses a shared organizational structure and code of conduct.2 The Mafia’s primary goal is protection racketeering, but it also engages in contract killing, drug trafficking, counterfeiting, fraud, loan sharking, and political corruption.3 The Godfather or the Don, who is the leader or boss of the Mafia, orders members of his Mafia family to commit these particular crimes to secure profit for the family and gain respect from the other members.4 Criminal organizations—such as the Mafia—have illegally accrued billions of dollars in revenue since approximately 1920; however, attempting to regulate organized crime, Congress enacted the Racketeer Influenced and Corrupt Organizations (“RICO”) Act.5 1 This hypothetical was created by the author to illustrate the concept of organized crime. 2 See Andrew Lawless, Cosa Nostra—Rebranding the Mafia, THREE MONKEYS ONLINE (June 2005), http://www.threemonkeysonline.com/als/_cosa_nostra_history_sicilian_ mafia.html (discussing the origin of the Mafia, also known as La Cosa Nostra, which is a hierarchical criminal organization based in Sicily, Italy). 3 See Racketeering: Organized Criminal Activities, LAWYERS.COM, http://criminal.lawyers. com/Criminal-Law-Basics/Racketeering-Organized-Criminal-Activities.html (last visited Oct. 8, 2011) (defining protection racketeering as an extortion scheme through which a criminal group or individual coerces other less powerful entities to pay money for protection services). 4 See Jeffrey E. Grell, Introduction, RICOACT.COM LLC, http://ricoact.com/?page_id=21 (last visited Oct. 8, 2011) (explaining RICO in the Mafia context, with the Godfather as the target of the statute). One can comprehend RICO most easily in the Mafia context, where the defendant is the Godfather. Id. The “racketeering activity” consists of the Mafia’s continuous criminal acts, e.g., bribery, extortion, murder, illegal drug sales, prostitution, etc. Id. Since the Mafia has engaged in these illegal activities for generations, the criminal actions can be considered a “pattern of racketeering activity”; thus, the government can prosecute the Godfather under RICO, even if he never personally engaged in the criminal behavior, because he operated and managed an enterprise that engaged in these acts. Id. Also, the victims of the criminal activity can sue the Godfather civilly to recover the economic damages that they suffered as a result of the Mafia’s pattern of racketeering activity. Id. 5 18 U.S.C. §§ 1961–1968 (2006). RICO has generally been categorized as the “organized crime” statute, but can also be used to fight government corruption. United States v. Turkette, 452 U.S. 576, 587 (1981). G. Robert Blakey, who played a major role in drafting the statute, will not expressly provide the reasoning for the title “RICO.” See G. Robert Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 170 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 Unfortunately, the RICO Act can only regulate organized crime to a certain extent, so problems arise when corruption reaches the federal government.6 In light of the lack of supervision among government agencies, dishonest government officials have ultimately deprived “the public of its right to a government free from corruption, fraud, and dishonesty.”7 This is made evident when the government’s RICO violations directly result in environmental and economic catastrophes, such as the recent oil spill in the Gulf of Mexico.8 For example, British Petroleum (“BP”) is facing a class action suit under the federal civil RICO statute for its alleged scheme to secure revenue by committing a pattern of criminal Blakey & Brian Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts—Criminal and Civil Remedies, 53 TEMP. L.Q. 1009, 1025 n.91 (1980) [hereinafter Blakey & Gettings, Basic Concepts] (providing an explanation for the development of RICO’s title). Contra Parnes v. Heinold Commodities, Inc., 548 F. Supp. 20, 21 (N.D. Ill. 1982) (wondering if the awkward title was based on the first Hollywood gangster movie “‘Little Caesar’”). 6 See 18 U.S.C. § 1961 (outlining the scope of RICO); see also infra Part II.C (illustrating one of many potential disasters resulting from a government immersed in corruption); infra notes 19–20 and accompanying text (presenting one of many obstacles limiting RICO’s scope). 7 Randy J. Curato et al., Note, Government Fraud, Waste, and Abuse: A Practical Guide to Fighting Official Corruption, 58 NOTRE DAME L. REV. 1027, 1042 (1983). Government corruption often occurs when politicians intentionally fail to disclose a conflict of interest in matters involving their political authority. Id. Also, a politician who makes a statement to the public intending “to personally benefit from a program currently under consideration”—in effect “depriv[ing] citizens of the honest and faithful participation of [their] public official[s]”—corrupts governmental affairs. Id. at 1042–43; see United States v. Bush, 522 F.2d 641, 653 (7th Cir. 1975) (finding a city employee guilty of mail fraud in defrauding the citizens of the city, the mayor, and the employees and officials of the city out of their right to his loyal and faithful services, their right to have the city’s business conducted honestly and impartially, their right to be aware of all pertinent facts when analyzing, negotiating, entering into, and renewing contracts with persons in companies seeking to do business with the city by failing to disclose his interest in a company to which the city awarded a contract, and using the mails in furtherance of his scheme); United States v. Barrett, 505 F.2d 1091, 1098 (7th Cir. 1974) (finding the former clerk of Cook County, Illinois, guilty of mail fraud, interstate travel in aid of racketeering activities, and attempting to evade income taxes when using the mail to further his scheme to defraud the citizens of Cook County); United States v. Isaacs, 493 F.2d 1124, 1149 (7th Cir. 1974) (convicting former state Governor and former Director of State Department of Revenue of conspiracy, use of interstate facilities in furtherance of mail fraud, tax evasion and making false statements to Internal Revenue agents and the former Governor when defrauding the State of Illinois, its citizens, or the racing associations “‘out of something of definable value, money or property’”). 8 See generally Amended Complaint, Rinke v. BP, P.L.C., No. 3:10CV00206 (N.D. Fla. filed Aug. 17, 2010) (providing a background of the oil spill allegedly caused by BP’s greed and fraudulent conduct). Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 171 acts to obtain oil and billions of dollars in profits from offshore drilling.9 BP is suspected of fraudulently acquiring drilling permits and lease agreements of federal properties from Minerals Management Services (“MMS”), the federal agency responsible for the mineral leasing of submerged lands of the Outer Continental Shelf, who allegedly participated in ongoing racketeering activity with BP.10 Although MMS is an alleged “enterprise” within the meaning of 18 U.S.C. § 1961(4), it is not named as a defendant in the suit.11 Allowing MMS to escape liability for its participation in BP’s scheme is unjustifiable; therefore, this Note proposes an amendment to the current federal civil RICO statute to directly address governmental liability when it serves as an enterprise to further a pattern of racketeering activity.12 First, Part II of this Note will briefly provide the historical context of the RICO statute; it will present the legislative history, the relevant background information, and other efforts to regulate government liability.13 Next, Part III offers an analysis of the current RICO statute and how it fails to accomplish its framers’ intentions.14 Further, Part III illustrates the potential effects of neglecting to resolve the issue in the 9 See generally id. (discussing how BP misrepresented the possible dangers of an oil spill and greatly overstated its ability to control a major spill so as to better its chances of securing the Deepwater Horizon exploration drilling permit and secure profits from offshore drilling through its scheme of criminal activity including mail fraud, wire fraud, and money laundering). 10 See id. ¶¶ 161–71 (explaining how BP infiltrated the MMS Enterprise to associate with and conduct or participate in the conduct of Enterprise’s affairs through the alleged racketeering activity); see also infra notes 98–99 and accompanying text (illustrating how BP bribed MMS officials with gifts, such as golf and ski trips and tickets to sporting events, and also reporting that MMS personnel habitually consumed alcohol, used cocaine and marijuana, and had sexual relations with representatives at oil industry functions). 11 See Amended Complaint, supra note 8, ¶¶ 161–71 (discussing the RICO enterprises involved in the BP oil spill). 12 See infra Part III (discussing why the government should be held accountable for its actions just like any other enterprise). Although those MMS agents who conspired with BP perhaps may be liable in their individual capacities under RICO because their acts are not within the scope of their authority as government employees, this will not sufficiently compensate all of the victims suffering as a result of the racketeering activity. Id.; see also infra notes 21–22 and accompanying text (discussing how individual government agents can face personal liability for RICO violations); infra note 150 and accompanying text (presenting an alternative measure to subject the government to civil liability); infra Part IV (proposing an amendment to the federal civil RICO statute that addresses claims against the United States for its participation in racketeering activity). 13 See infra Part II (providing the historical context of the RICO statute by presenting the legislative history, relevant background information, and an overview of the BP oil crisis). 14 See infra Part III (analyzing the current RICO statute and how it fails to accomplish its framers’ intent in creating the Act). Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 172 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 near future.15 Finally, Part IV proposes a solution that not only holds the government accountable for its unethical actions, but also attempts to restore justice, which, in turn, will lead to a more secure environment for the citizens of the United States.16 II. BACKGROUND The prevalence of corruption among governmental entities has inadvertently led to a nation that permits its federal government to escape liability by granting it immunity from suit for violations of certain laws, including the RICO Act.17 Thus far, the Supreme Court has effectively avoided addressing whether the federal government is subject to civil or criminal liability for its participation in a “‘pattern of racketeering activity.’” 18 To date, courts have held that a RICO action cannot be maintained against the United States absent an express waiver of sovereign immunity.19 The federal circuits that have considered this issue have given various reasons for allowing the government to escape liability under RICO.20 15 See infra Part III (presenting the possible effects of allowing the government to continue avoiding liability for its illegal acts). 16 See infra Part IV (proposing an amendment to the RICO statute that directly addresses claims against the United States when the government operates as an enterprise to further a pattern of racketeering activity). 17 18 U.S.C. §§ 1961–1968 (2006); see infra note 114 (presenting various instances where governmental entities served as an enterprise to further patterns of racketeering activity); see also Examples of Public Corruption Investigations—Fiscal Year 2011, IRS, http://www.irs.gov/compliance/enforcement/article/0,,id=228095,00.html (last updated Sept. 19, 2011) (providing numerous examples of public corruption investigations during the fiscal years 2009–2011 at all levels of government). Although the majority of corruption appears to be most prevalent among state and local governments, corruption is also common at the federal level, but sovereign immunity prevents it from reaching the federal courts. See infra Part II.B (discussing previous attempts to hold the federal government liable for unlawful actions and providing the jurisprudence under RICO); infra Part III.C (addressing how sovereign immunity prevents suits against the federal government); infra notes 68–70 and accompanying text (discussing governmental immunity). 18 See 18 U.S.C. § 1961(5) (“‘[P]attern of racketeering activity’ requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.”). 19 See, e.g., United States v. Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 23 (2d Cir. 1989) (“It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define the court’s jurisdiction to entertain the suit.’” (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941))); see Andrade v. Chojnacki, 934 F. Supp. 817, 831 (S.D. Tex. 1996) (reiterating that courts do not allow plaintiffs to bring claims against the United States for its agencies’ actions under RICO). 20 See, e.g., Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir. 1996) (stating that “‘government entities are incapable of forming [the] malicious intent’ necessary to support a RICO Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 173 Although the government cannot be named as a defendant to a RICO claim, an individual government agent can still face personal liability for RICO violations.21 How can the federal government rationalize avoiding liability for RICO violations while subjecting its agents to personal liability?22 This notion seems unjust considering that state and local governmental bodies are generally subject to tort liability for the acts of their agents under the doctrine of respondeat superior.23 Additionally, a government agency can serve as an “enterprise” through which a defendant may engage in patterns of racketeering activity; however, this does not expose the governmental entity to liability under RICO.24 Allowing government agencies to circumvent liability poses a major problem for victims who suffer as a result of RICO violations, as their action” (quoting Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991))); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (noting that federal governmental entities cannot possibly violate RICO because they are not subject to state or federal criminal prosecution). 21 See Grell, supra note 4 (discussing the unavailability of the sovereign immunity defense to a government agent who engages in racketeering activity because such acts are not within the scope of the agent’s authority as a government employee). 22 See Lancaster Cmty. Hosp., 940 F.2d at 404 (providing the Ninth Circuit’s view that holding the “‘body politic’” liable for the criminal actions of its agents operating beyond the scope of their authority is bad policy, as “the taxpayers[] will pay if Lancaster’s RICO claim is successful”). 23 See infra note 150 and accompanying text (presenting an alternate avenue to subject the government to civil liability). Compare Castro v. California, 138 Cal. Rptr. 572, 575 (Cal. Ct. App. 1977) (denying the existence of an employment relationship regarding a prospective juror), with Hamay v. Wash. Cnty., 435 A.2d 606, 608 (Pa. 1981) (holding that a judge is not an agent or employee of the county, but an employee of the state; therefore, liability under respondeat superior is available because the principal has the ability to control the actions of its agents). See generally 57 AM JUR. 2D Municipal, County, School, and State Tort Liability § 145 (2001 & Supp. 2010) (discussing the application of respondeat superior to government agents as a theory of vicarious liability). To determine a state or local government entity’s liability for a tort committed by its officers, agents, or employees under respondeat superior, a relationship of agent-principal or employer-employee must exist between the governmental body and the officer, agent, or employee. Id. § 152. However, the respondeat superior theory does not apply to § 1983 claims against state or local governmental entities. See, e.g., Monell v. Dep’t of Soc. Servs. of N.Y., 416 U.S. 658, 691 (1978) (concluding that “a municipality cannot be held liable solely because it employs a tortfeasor, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory”). 24 See, e.g., 18 U.S.C. § 1961(4) (2006) (“‘[E]nterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”). A government agent extorting persons under “color of authority” is participating in the governmental entity’s affairs. Grell, supra note 4. A governmental entity that serves as a passive instrument through which racketeering activity is committed, advanced, or concealed is considered an enterprise; furthermore, the governmental entity may also serve as a victim enterprise. Id. Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 174 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 wrongful actions potentially cause severe economic injury or environmental disasters.25 Federal officials have no interest in creating a law aimed to remedy and deter their own unethical activities, a fact which also elucidates the lack of federal efforts devoted generally to investigating and prosecuting economic crimes.26 However, 18 U.S.C. § 201, among other statutes, has been used as an avenue to prosecute official corruption.27 To date, numerous government officials have engaged in unlawful schemes to secure profits, which have involved various acts of fraud, deceit, and soliciting or accepting gifts from prohibited sources.28 While racketeering activity among government officials is relatively common, and corruption continues to disrupt the 25 See infra Part II.C (presenting a recent misfortune where a government agency’s violation of the RICO statute resulted in significant economic loss to victims). For example, former Illinois governor Rod Blagojevich was accused of running a pay-to-play scheme that resulted in a $267 million racketeering lawsuit. See Elizabeth de la Vega, For Governor Blagojevich, It’s Beginning to Look a Lot Like RICO, TRUTHOUT (Dec. 11, 2008), http://archive.truthout.org/121108J (listing six charges against the governor of Illinois for his participation in a six year pattern of racketeering activity with the very state he was elected to serve and operating an illegal enterprise used to further his scheme of money laundering, bribery, extortion, etc.); see also IRS, supra note 17 (demonstrating various other corruptive plots where the government’s criminal activity resulted in significant economic gain for government officials at the expense of United States citizens). While evidence of federal RICO violations is scarce due to the sovereign immunity doctrine, and corruptive acts most often occur through lesser included crimes, RICO violations at the federal level of government are perhaps the most severe form of corruption because of their detrimental effects and the considerable number of innocent people who are affected. See 115 CONG. REC. 5874 (1969) (noting Senator McClellan’s statements about the severity of organized crime when Congress first began making efforts to control it, specifically emphasizing that “[a]s the scope of organized crime’s activities has expanded, its efforts to corrupt public officials at every level of government have grown. . . . [W]ith the necessary expansion of governmental regulation . . . its power to corrupt has given organized crime greater control over matters affecting the everyday life of each citizen”). 26 See G. Robert Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 NOTRE DAME L. REV. 237, 342–47 (1982) (noting that efforts against economic crime were underfunded, uncoordinated, and undirected at the federal level). 27 See 18 U.S.C. § 201 (criminalizing federal officials for both the offer and receipt of bribes and illegal gratuities); United States v. Sun-Diamond Growers, 526 U.S. 398, 399 (1999) (suggesting that § 201 is supplemented by what the Supreme Court has called “an intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other self-enriching actions by public officials”); Sara Sun Beale, Comparing the Scope of the Federal Government’s Authority to Prosecute Federal Corruption and State and Local Corruption: Some Surprising Conclusions and a Proposal, 51 HASTINGS L.J. 699, 701 (2000) (proposing that § 201 is the most important criminal provision dealing with federal political corruption). 28 See IRS, supra note 17 (revisiting a substantial amount of recent unlawful schemes where government officials secured significant profits through criminal activity); see also infra notes 98–99 and accompanying text (depicting a recent example where government agents received gifts, drugs, sex, etc. from oil representatives in exchange for deepwater drilling permits). Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 175 government’s integrity, this issue remains a rather unfinished area of federal court jurisprudence.29 Part II.A of this Note examines the framework of the RICO statute, including the key elements and explanations of ambiguous language, while also recapping its legislative history.30 Next, Part II.B recounts other efforts to hold the government liable for unlawful actions, using case law to illustrate the courts’ various reasons for permitting corruption.31 Finally, Part II.C describes the events leading up to the BP oil spill and the government agency’s history of participating in racketeering activity.32 A. The Framework of RICO The scope of a statute must be initially determined by examining its text.33 Moreover, when interpreting the statutory language, ambiguities must be managed carefully by giving authoritative administrative constructions the appropriate deference to which they are entitled.34 29 See supra note 28 and accompanying text (discussing the prevalence of racketeering activity among government officials); supra text accompanying note 18 (noting that the Supreme Court has successfully avoided addressing whether the government is subject to civil or criminal liability for its participation in a “pattern of racketeering activity”). Sovereign immunity bars claims against the government; however, Congress has created some exceptions that enable citizens to file civil suits against the United States. See infra note 150 and accompanying text (discussing the Federal Tort Claims Act as a limited waiver of sovereign immunity for tort actions against the government). 30 See infra Part II.A (examining the key elements and ambiguous language in the text of the RICO statute, while also outlining the legislative history). 31 See infra Part II.B (revisiting other efforts to hold the government liable for unlawful actions through case law). 32 See infra Part II.C (offering a detailed account of the turmoil that led to the recent oil spill in the Gulf of Mexico). 33 United States v. Turkette, 452 U.S. 576, 580 (1981); see Lewis v. United States, 445 U.S. 55, 60 (1980) (“The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the ‘starting point’ must be the language of the statute itself.”). Therefore, RICO falls within that basic rule, as the Supreme Court must look to RICO’s language to ascertain the legislative intent. Turkette, 452 U.S. at 580; see also United States v. Apfelbaum, 445 U.S. 115, 121 (1980) (“It is a well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language.”); United States v. Fisher, 6 U.S. 358, 385–86 (1805) (reiterating that the legislature’s words are to be “taken in their natural and usual sense . . . [and] every part [of a statute] is to be considered . . . [but] where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed”). 34 See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations . . . .” (footnote omitted)). However, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 176 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 Therefore, Part II.A.1 will provide the foundation of the initiatives of RICO, including a detailed examination of the ambiguous language in the text.35 Further, Part II.A.2 offers an overview of RICO’s legislative history.36 1. The Foundation of RICO Section 1964(c) of RICO authorizes “[a] person injured in his business or property by reason of a violation of section 1962” to sue.37 well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43; see also Iannelli v. United States, 420 U.S. 770, 786–89 (1975) (discussing the construction of Title VIII of the Organized Crime Control Act and noting that the general rule of statutory construction must “defer to a discernible legislative judgment . . . [as] [t]he Act is a carefully crafted piece of legislation”). The Supreme Court has emphasized that an individual’s personal evaluation of a specific legislative course should be allocated in the process of interpreting a statute; rather, its task is determining what Congress intended by the particular words it used in the text of the statute. Diamond v. Chakrabarty, 447 U.S. 303, 318 (1980). To that end, the Sixth Circuit has found the literal reading of RICO to be consistent with the methodology used in Turkette where the Supreme Court recognized that Congress intended “RICO [to] be liberally construed to effectuate its remedial purposes” in a civil context. USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n.1 (6th Cir. 1982). 35 See infra Part II.A.1 (providing the foundation of the RICO statute and offering a detailed discussion of the controversial language of the text). 36 See infra Part II.A.2 (offering an overview of the legislative history). 37 18 U.S.C. § 1964(c) (2006). The full text of 18 U.S.C. § 1964 provides: (a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons. (b) The Attorney General may institute proceedings under this section. Pending final determination thereof, the court may at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of satisfactory performance bonds, as it shall deem proper. (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud, in Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 177 Under § 1961(3), a “person” includes any individual or entity capable of holding a legal or beneficial interest in property.38 Although this word describes the entities to which the law assigns rights, Congress has failed to systematically define this ambiguous term; thus, issues arise when which case the statute of limitations shall start to run on the date on which the conviction becomes final. (d) A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States under this chapter [18 USCS §§ 1961 et seq.] shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States. Id. § 1964. For § 1962, see infra note 42. 38 18 U.S.C. § 1961(3). See generally Michael J. Gerardi, The “Person” at Federal Law: A Framework and a RICO Test Suite, 84 NOTRE DAME L. REV. 2239 (2009) (providing an indepth analysis of the term “person” in the context of RICO (internal quotation marks omitted)). The full text of 18 U.S.C. § 1961 defines all of the terms included in the elements that are necessary to establish a RICO violation: As used in this chapter— (1) “racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code . . . ; (2) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, any political subdivision, or any department, agency, or instrumentality thereof; (3) “person” includes any individual or entity capable of holding a legal or beneficial interest in property; (4) “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; (5) “pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity; (6) “unlawful debt” means a debt (A) incurred or contracted in gambling activity which was in violation of the law of the United States, a State or political subdivision thereof, or which is unenforceable under State or Federal law in whole or in part as to principal or interest because of the laws relating to usury, and (B) which was incurred in connection with the business of gambling in violation of the law of the United States, a State or political subdivision thereof, or the business of lending money or a thing of value at a rate usurious under State or Federal law, where the usurious rate is at least twice the enforceable rate. 18 U.S.C. § 1961. Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 178 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 determining whether municipalities are subject to civil liability under RICO.39 However, the language in the modern definition does not appear to include government entities in the term “person.”40 Further, when analyzing the RICO statute, it is necessary to define what constitutes an “enterprise,” distinct from a “pattern of racketeering activity,” as one does not necessarily establish the other.41 Section 1962, which provides a list of prohibited activities under RICO, may be violated by “any person . . . associated with any enterprise . . . the activities of which affect . . . commerce, conduct[ing] . . . [the] enterprise’s affairs through a pattern of racketeering activity . . . .”42 Racketeering 39 See Gerardi, supra note 38, at 2240 (noting that personhood is difficult to elucidate succinctly in federal law because Congress’ approach to defining the term “person” has never been systematic). 40 Id. But see id. at 2264–67 (proposing two changes to the definition of the word person that would provide courts with better guidance when determining what entities or individuals are included in the term). 41 See Boyle v. United States, 129 S. Ct. 2237, 2245 (2009) (“[T]he existence of an enterprise is an element distinct from the pattern of racketeering activity and ‘proof of one does not necessarily establish the other.’” (quoting United States v. Turkette, 452 U.S. 576, 583 (1980))). An “enterprise” is not the “pattern of racketeering activity,” but is an entity separate from the pattern of activity through which it engages; thus, the government has the burden of establishing the existence of an enterprise as a separate element in every case. Turkette, 452 U.S. at 583. 42 18 U.S.C. § 1962 (2006). The full text of 18 U.S.C. § 1962 provides: (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer. (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 179 activity consists of a wide range of crimes from state-defined felonies to embezzlement of pension and welfare funds under federal statutes.43 Additionally, § 1961(5) requires at least two racketeering acts listed in § 1961(c) within a period of ten years.44 Seeing as Congress did not express its intention to limit the application of RICO on the face of the statute, one must further examine the legislative history to determine its comprehensive objectives.45 2. Legislative History In 1951, the American Bar Association (“ABA”) established the ABA Commission on Organized Crime after the Special Committee to Investigate Organized Crime in Interstate Commerce revealed the emerging problem of organized crime among legitimate businesses and state and local governments. 46 Subsequently, the Commission reviewed numerous proposals to strengthen the laws concerning organized crime.47 Around 1967, when organized crime and racketeering became well-known in the world of government, business, and unions, the President’s Commission on Law Enforcement and the Administration of foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. Id. 43 18 U.S.C. § 1961(1); see Curato et al., supra note 7, at 1095 (highlighting murder, robbery, and arson among other state-defined felonies included in the definition of racketeering activity; the federal statutes include the Hobbs Act, the Travel Act, and bribery). 44 18 U.S.C. § 1961(5); see also id. § 1961(1) (presenting the list of possible predicate acts that may be used to establish a pattern of racketeering activity); supra note 18 (defining and providing the prerequisites to establish a “‘pattern of racketeering activity’”). 45 See infra Part II.A.2 (offering an overview of the legislative history of RICO). 46 Organized Crime Control: Hearings on S. 30 and Related Proposals before Subcomm. No. 5 of the House Comm. on the Judiciary, 91st Cong. 538, 544 (1970) (testimony of ABA President Edward L. Wright) [hereinafter cited as House Hearings]; see id. (noting that the ABA Commission on Organized Crime was established in response to Senator Estes Kefauver’s request; he was Chairman of the Special Committee to Investigate Organized Crime in Interstate Commerce (also called the Kefauver Committee)). 47 See House Hearings, supra note 46 (noting that the ABA Commission on Organized Crime examined various legislative proposals to strengthen the laws concerning organized crime; for instance, some measures “recognized that money [was] the key to power in the underworld”). Hearings began to expose the structure of the Mafia or La Cosa Nostra by 1960, while the Department of Justice began attempts to control racketeer infiltration among unions through antitrust theories. See generally Blakey & Gettings, Basic Concepts, supra note 5, at 1015 n.23 (noting that the McClellan Committee held hearings exposing the structure of the “national syndicate of organized crime”). Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 180 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 Justice (“the Katzenbach Commission”) recommended a crime control strategy that advocated the use of new approaches to control infiltration of legitimate businesses.48 After reexamining federal criminal jurisprudence between 1966 and 1971, the National Commission on Reform of the Federal Criminal Law further developed noteworthy perspectives regarding the disposition of the issues facing Congress.49 48 See PRESIDENT’S COMM’N ON LAW ENFORCEMENT & ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 200–09 (1967) (presenting the Commission’s recommendations of certain methods to successfully implement a full-scale commitment to destroy the power of organized crime groups). Additionally, “racketeering” has never been a term limited to organized crime in the mob sense and has been applied broadly to an assortment of criminal schemes, including illegal businesses; however, its origin remains unclear. GUS TYLER, ORGANIZED CRIME IN AMERICA: A BOOK OF READINGS 181–82 (1962). One theory notes that the term “racket” originates from young men in New York City, under the guidance of political leaders, giving affairs called rackets, whereby they associated themselves with gang-members who found it easy to force tradesmen to buy tickets. Id. For that reason, obtaining money by coercion or fraud developed into the term “racketeering.” Id. On the other hand, the Copeland Committee used the term loosely to describe any questionable, fraudulent, disliked, or immoral practice, regardless of whether it was criminal. S. REP. NO. 75-1189, at 2 (1937). Currently, RICO labels the accused as a racketeer, which has a prejudicial impact on adjudicators. ABA: REPORT TO THE HOUSE OF DELEGATES, SECTION ON CRIMINAL JUSTICE 4 (1982). In 1934, the Copeland Committee heard a convincing argument that it was the public’s and officials’ reluctance to control “white-collar crime” that led to the development of “organized crime” during prohibition, which persistently emphasized: Both crime and racketeering of today have derived their ideals and methods from the business and financial practices of the last generation. . . . It is a law of social psychology . . . that the socially inferior tend to ape the socially superior. . . . It was inevitable that, sooner or later, we would succeed in “Americanizing” the “small fry”—especially the foreign small fry. . . . All was relatively safe, since the legal profession was already ethically impaired through its affiliations with the reputable racketeers. . . . The idea that when prohibition is ended the racketeers . . . will meekly and contritely turn back to blacking shoes . . . is downright silly. They will apply the technique they have mastered to the dope ring . . . . They will find crafty lawyers all too willing to defend them from the “strong arm” of the law for value received. . . . So long as the lawless can get protection in return for keeping corrupt politicians in office, we shall not be free from the crime millstone about our necks. Investigation of So-Called “Rackets”: Hearings Before a Subcomm. of the Senate Committee on Commerce, 73d Cong. 710–12 (1934) (testimony of Harry Elmer Barnes). 49 See G. Robert Blakey et al., Introduction Memorandum and Excerpts from Consultants Report on Conspiracy and Organized Crime, in 1 WORKING PAPERS: NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS 381 (1970) (noting that the staff working for the Commission examined several concepts subsequently incorporated into RICO, such as “enterprise” and “pattern of racketeering”; also, the staff work indicated the narrow scope of predicate offenses in RICO during the earliest stages of the legislative process). The National Commission on Reform of the Federal Criminal Law was created by Act of Nov. Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 181 On January 15, 1969, Senator John L. McClellan drafted the Organized Crime Control Act (“S. 30”) to deploy the recommendations from the Katzenbach Commission.50 Subsequently, he presented the evolution of organized crime in the United States, emphasizing the common practices of loan sharking, the infiltration of businesses, and the subversion of democratic processes.51 Focusing on Senator McClellan’s statements regarding the infiltration of the legitimate economy, Senator Hruska introduced the Criminal Activities Profits Act, which incorporated the features of his previous bills and identical bills sponsored by Richard Poff, the Congressman from Virginia, and was designed to attack “the economic power of organized crime” on two fronts—criminal and civil. 52 However, Senator Hruska considered the 9, 1966, Pub. L. No. 89–801, 80 Stat. 1516 (1966); further, Edmund G. Brown was Chairman, and Congressman Richard H. Poff was Vice-Chairman. Id. 50 See Blakey & Gettings, Basic Concepts, supra note 5, at 1017 (discussing the origin of the Organized Crime Control Act); see also supra notes 45–49 (examining the recommendations from the Katzenbach Commission); infra note 112 (providing the Statement of Findings and Purpose of the Organized Crime Control Act). 51 See 115 CONG. REC. 5872–74 (1969), reprinted in Measures Relating to Organized Crime: Hearings on S. 30, S. 994 . . . Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 91st Cong., 493–511 (1969) [hereinafter cited as Senate Hearings] (noting Senator McClellan’s recognition of the growth of organized crime in the United States and discussing emerging illegal activities, such as loan sharking, the infiltration of legitimate business, and the subversion of the democratic processes). Also, Senator McClellan stressed the failure to prevent the growth of organized crime. 115 CONG. REC. 5874; Senate Hearings, supra, at 496. He further addressed the subversion of democratic processes: To exist and to increase its profits, . . . organized crime has found it necessary to corrupt the institutions of our democratic processes, something no society can long tolerate. Today’s corruption is less visible, more subtle and therefore more difficult to detect and assess than the corruption of the prohibition and earlier eras. Organized crime operates even in the face of honest law enforcement, but it flourishes best in a climate of corruption. As the scope of organized crime’s activities has expanded, its efforts to corrupt public officials at every level of government have grown. For with the necessary expansion of governmental regulation of private and business activity, its power to corrupt has given organized crime greater control over matters affecting the everyday life of each citizen. The potential for harm today is thus greater if only because the scope of governmental activity is greater. 115 CONG. REC. 5874–75; Senate Hearings, supra, at 497. 52 115 CONG. REC. 6993; see id. at 6993–94 (describing the criminal and civil provisions incorporated into The Criminal Activities Profits Act). The Criminal Activities Profits Act, S. 1623, also included provisions for private equitable relief and treble damages on its face. Id. at 6995–96; see also Senate Hearings, supra note 51, at 387–88 (examining Assistant Attorney General Wilson’s criticism of S. 1623, but expressing his fondness of S. 1861 because of its useful civil remedies that could be invoked by the lesser standard of proof); Robert Taylor Hawkes, Note, The Conflict Over RICO’s Private Treble Damages Action, 70 Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 182 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 criminal provision an ancillary to the civil provision, the intended focal point of the bill.53 Less than a month later, the two Senators introduced the Corrupt Organizations Act (“S. 1861”), which offered express provisions for relief in government proceedings and criminal sanctions.54 The Department of Justice also conveyed its concern with the breadth of predicate offenses, advising that they were overbroad and could result in the complete federalization of criminal justice.55 While S. 30 was amended to incorporate S. 1861 as Title IX, it was not intended to punish individuals; rather, its purpose was remedial.56 Although S. 1861 did not include “fraud” as one of the activities that CORNELL L. REV. 902, 936 (1985) (“‘RICO claims can stigmatize defendants only if courts restrict the applicability of the broad statutory language to proven organized criminals.’”). However, Congressional intent might be thwarted if a particularly defined limitation focusing on classic mobsters was adopted to circumvent the scope of civil RICO because it might be viewed as carrying a stigma, thus leading to the adoption of a higher burden of proof. Id. at 935–36. Therefore, the implementation of these new remedies should not warrant separate rules of evidence. Id.; see also Stockwell v. United States, 80 U.S. (13 Wall.) 531, 547 (1871) (noting that an injured party may recover double or treble damages in a civil suit; however, those suits can hardly be deemed penal actions requiring the application of different rules of evidence). 53 See 115 CONG. REC. 6993–94 (discussing Senator Hruska’s belief that the civil provision is the more important feature of the bill and further expressing the need for innovation in the fight against organized crime). The bill expanded procedures that had been proven in the antitrust field and applied them in the organized crime domain. Id.; see also State Farm Fire & Cas. Co. v. Estate of Caton, 540 F. Supp. 673, 680 (N.D. Ind. 1982) (“[S]ection 1964(c) was . . . cast as a separate statute intentionally to avoid the restricted precedent of antitrust jurisprudence.”). 54 See 115 CONG. REC. 9568 (discussing the Corrupt Organizations Act of 1969 and providing the reasoning for its enactment). More importantly, Senator McClellan never indicated that the express provisions for government proceedings were intended to exclude private parties. Id. at 9567. Although this Act focused heavily on the progressing remedies in antitrust law, he did not intend to bring that complicated field into the enforcement of the bill. Id. “There is, however, no intention here of importing the great complexity of antitrust law enforcement into this field.” Id. 55 Senate Hearings, supra note 51, at 404–07. Congress acted because “existing law, state and federal, was not adequate to address the problem, which was of national dimensions.” United States v. Turkette, 452 U.S. 576, 586–87 (1981). The American Civil Liberties Union opposed the breadth of S. 1861 because it was applicable to areas beyond the traditional definition of organized crime. Senate Hearings, supra note 51, at 475. The Supreme Court reversed the Sixth Circuit’s effort to read a “‘racketeering’” limitation into the text of 18 U.S.C. § 1961 because of the lack of limitation in the text and vagueness problems associated with reading an undefined concept into the statute; moreover, the confusion indirectly concluded that Congress intended to criminalize all conduct addressed in the statutory language. United States v. Culbert, 435 U.S. 371, 380 (1978). 56 See 115 CONG. REC. 9568 (1969) (emphasizing that the purpose of the bill was remedial, rather than penal). The bill was based upon the consideration that organizations affecting commerce through a pattern of racketeering activity are acting in opposition to the public interest. Id. Thus, the bill was designed to protect the public against parties engaging in organized criminal activity. Id. Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 183 “harm[ed] innocent investors and competing organizations,” S. 30 inserted it into its statement of findings and purpose; however, this blend of S. 30 and S. 1861 essentially narrowed the enumerated racketeering activities in Title IX.57 Importantly, Title IX provided various avenues to attack government corruption, including the state offenses of bribery and extortion, as well as the federal offenses of fraud, bribery, obstruction of justice, and extortion.58 When the bill was brought up for consideration in the House of Representatives, Judiciary Committee Chairman Emanuel Celler characterized Title IX as a means through which injured private parties could recover treble damages— one of the amendments the President had originally endorsed in his message on organized crime.59 The House passed the bill by a vote of 431 to 26 after another debate regarding the scope of statutorily defined organized crime and racketeering activity.60 The text and legislative history appear to support holding a government agency liable for its RICO violations, yet it is still necessary to examine the jurisprudence regarding Congress’ intentions.61 B. Previous Attempts to Hold the Federal Government Liable for Unlawful Actions Only a few actions against federal government entities have been brought under RICO; these cases provide various reasons for the courts’ inability to hold the government accountable for its violations of the 57 The Organized Crime Control Act of 1970, Pub. L. No. 91–452, 84 Stat. 922–23 (1970); 115 CONG. REC. 9568 (1969); see Blakey, supra note 26, at 268 (noting that the list of racketeering activities was narrowed, but was also expanded to include mail fraud, wire fraud, and securities fraud). While Title IX was narrowed as suggested by the Department of Justice, the addition of fraud inherently included mail fraud, wire fraud, and securities fraud. Id.; see also 18 U.S.C. § 1341 (2006) (providing the definition of mail fraud); 18 U.S.C. § 1343 (defining wire fraud). 58 See 18 U.S.C. § 201 (delineating the use of bribery to prevent government corruption); id. § 1510 (describing the federal offense of obstruction of justice); id. § 1951 (outlining the prohibited activities included in extortion). 59 See 116 CONG. REC. 35, 37, 196, 264 (1970) (discussing Chairman Celler’s observations of Title IX and the President’s signing of the legislation). Also, Title IX was designed to impede the infiltration of businesses by organized crime, which led to new civil remedies, including orders of prohibition against business activity, dissolution, and treble damages for injured parties. Id. at 35, 196. 60 See id. at 35, 204–05 (noting that Congressman Poff argued against an amendment— offered by Congressman Mario Biaggi—explicitly prohibiting membership in the Mafia because he disagreed with the idea of confining S. 30 to “organized crime”). 61 See infra Part II.B (discussing the jurisprudence under RICO); supra Part II.A (offering an overview of RICO’s legislative history and textual language). Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 184 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 statute.62 For instance, the Ninth Circuit has refused to acknowledge the government’s ability to form the “malicious intent” necessary to support a RICO action, as demonstrated in Lancaster Community Hospital v. Antelope Valley Hospital District. 63 The Ninth Circuit also considers it bad policy to hold the “‘body politic’” (taxpayers or citizens of a state) liable for the criminal actions of a single government agent or a group of government agents operating beyond the scope of their authority.64 Moreover, public policy is offended if the body-politic is “made liable for extraordinary damages as a result of the actions of a few dishonest officials.” 65 The Sixth Circuit takes a different approach, rejecting RICO’s application to government agencies because § 1962 requires racketeering activity as a predicate for a civil RICO action, which can only occur if the defendant is “‘chargeable,’ ‘indictable,’ or ‘punishable’ for violations of specific state and federal criminal provisions.” 66 In Berger v. Pierce, the insureds sued the Federal Insurance Administration (“FIA”) for benefits under policies issued by the FIA, in accordance with the Flood Insurance Program. However, the court decided that subjecting a federal agency to federal criminal prosecution would be an abuse of legal practice.67 In addition to these justifications for permitting the government to escape liability for its unethical actions, the foremost reason that there cannot be a RICO claim against the federal government relates to the sovereign immunity concern.68 The jurisprudence regarding this issue 62 See infra notes 63–71 and accompanying text (providing various reasons for allowing government to escape liability under RICO). 63 940 F.2d 397 (9th Cir. 1991); see, e.g., Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir. 1996) (stating that “‘government entities are incapable of forming [the] malicious intent’ necessary to support a RICO action” (quoting Lancaster Cmty. Hosp., 940 F.2d at 404)). 64 Lancaster Cmty. Hosp., 940 F.2d at 404. 65 Id. The court held that exemplary damages are not available against municipal corporations “‘because such awards would burden the very taxpayers and citizens for whose benefit the wrongdoer [i]s being chastised.”’ Id. 66 Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991). Although the Federal Insurance Agency (“FIA”) engaged in a RICO conspiracy under § 1962(d), the claim against the federal agency failed, as it is self-evident that a federal agency is not subject to state or federal prosecution. Id. Racketeering activity is a predicate for a civil RICO violation, which requires a defendant to be punishable for criminal provisions; thus, the claim was defective as a matter of law. Id. 67 Id. “Aside from the fact that the elements of RICO have not been adequately alleged, 18 U.S.C. §§ 1961–1962, it is clear that there can be no RICO claim against the federal government.” Id. 68 See, generally John F. Conway, Note, Equitable Estoppel of the Federal Government: An Application of the Proprietary Function Exception to the Traditional Rule, 55 FORDHAM L. REV. 707 (1987) (discussing governmental immunity and equitable estoppel). The doctrine of sovereign immunity prevents suits against the government absent an express waiver. Id. at 710; see infra note 69 (demonstrating that the text of RICO does not present an unequivocal Valparaiso University Law Review, Vol. 46, No. 1 [2011], Art. 6 http://scholar.valpo.edu/vulr/vol46/iss1/6 2011] Combating Government Corruption 185 under RICO is extremely limited because sovereign immunity bars claims against the government.69 As a corollary to sovereign immunity, the government has also been immune from application of the doctrine of equitable estoppel, which prevents it from being estopped from asserting its rights absent consent.70 Justification for these doctrines relies on the notion that claims against the government hinder the separation of powers between the legislative and judicial branches of the federal government.71 An additional concern is protecting public finances.72 Equitable estoppel may result in compelling the government to provide a benefit expression of congressional intent to expose the government to liability). But see, e.g., Federal Tort Claims Act, 28 U.S.C. § 1346(b) (illustrating one of the limited circumstances in which Congress has passed legislation waiving sovereign immunity). 69 See United States v. Georgia-Pacific Co., 421 F.2d 92, 99 (9th Cir. 1970) (noting that governmental immunity from equitable estoppel arises as an incidence of sovereign immunity, which prevents the government from being sued unless it consents); supra note 68 (reiterating that the sovereign immunity doctrine bars suits against the United States absent an express waiver). While the Fourteenth Amendment allows Congress to abrogate state sovereign immunity, the Eleventh Amendment bars citizens from bringing claims for relief or money damages in a federal court, unless the state waives immunity or Congress abrogates it. 32 AM. JUR. 2d Federal Courts § 981 (2007); see also U.S. CONST. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”). Congress has the power to abrogate the states’ Eleventh Amendment immunity when a statute contains an unequivocal statement of congressional intent to abrogate, Congress identifies the history of unconstitutional action by the states, and the rights and remedies created under the statute are congruent and proportional to the violation Congress sought to prevent. 32 AM. JUR. 2d Federal Courts § 981 (2007). To determine whether Congress has abrogated a state’s Eleventh Amendment immunity, the court must clarify whether the “‘evidence of congressional intent [to abrogate the states’ immunity is] both unequivocal and textual,’” and Congress must have the power to abrogate according to the Constitution. Seminole Tribe of Fla. v. Florida, 11 F.3d 1016, 1024 (11th Cir. 1994). Congress did not possess the power to abrogate the states’ Eleventh Amendment immunity when enacting the Indian Gaming Regulatory Act under the Indian Commerce Clause. Id. at 1019. 70 Conway, supra note 68, at 709–10. “The doctrine of equitable estoppel precludes a party from asserting a claim or defense that otherwise is available to him against his opponent who has detrimentally altered her position in reliance on the party’s misrepresentation or failure to disclose a material fact despite a duty to do so.” Id. at 709. Further, the primary principle behind equitable estoppel is that no one should benefit from his own wrong. R. H. Stearns Co. v. United States, 291 U.S. 54, 61–62 (1934). 71 See Phelps v. Fed. Emerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir. 1986) (asserting that preventing the government from denying unlawful actions from its government agents results in the action of the official functioning as the law, as opposed to Congress’ enacted law). 72 See Cmty. Health Servs. of Crawford Cnty. v. Califano, 698 F.2d 615, 633 (3d Cir. 1983) (Meanor, J., dissenting) (“Where no substantive entitlement exists, to estop the government amounts to no more than a court authorized raid on the public treasury.”). Lipinski: Combating Government Corruption: Suing the Federal Government Via Produced by The Berkeley Electronic Press, 2011 186 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 46 for a party when there is a lack of sufficient funds authorized by Congress.73 In Schweiker v. Hansen, an agent for the Social Security Administration (“SSA”) misinformed Mrs. Hansen by advising her that she was ineligible to receive benefits; yet, she only had to file a written application in order to receive them, which she did one year later.74 The Supreme Court precluded the application of procedural equitable estoppel against the government agency because its activity was inherently sovereign.75 For government activity to be classified as sovereign, its actions must be “unique, and without analogy in the private sector.”76 Moreover, the policy considerations guiding the doctrine of sovereign immunity—ensuring the honest and effective administration of sovereign functions—must be strictly enforced.77 To that end, the Court considered the risk of opening the floodgates to litigation and the burden on public funding too immense to permit “government agents’ misconduct to result in circumventing a procedural requirement.”78 73 See Conway, supra note 68, at 711 (recognizing that es
