In this qui tam action against four student loan corporations alleged to have defrauded the Department of Education, the relator contends that the trial court erred in rejecting his proposed instructions to the jury. However, he failed to preserve this argument on appeal.
Under Federal Rule of Civil Procedure 51(d)(1)(B), a party may assign as error a failure to give an instruction, if that party properly requested it and — unless the court rejected the request in a definitive ruling on the record — also properly objected. For a court’s rejection of a proposed instruction to constitute a definitive ruling on the record, the record must simply provide a reviewing court with a sufficient basis from which to determine the district court rejected the substance of the proposed instruction, not merely the litigant’s choice of words. And, to be “definitive,” this rejection must be final, not tentative. Thus, where a litigant proposes an instruction and the district court’s final ruling on the record demonstrates that the court rejected it on the merits, the claim of error is preserved.
Here, however, the relator didn’t preserve his challenge to the district court’s failure to give his proposed jury instructions.At the charge conference, the district court outlined its proposed jury instructions in broad terms, explaining that it would give standard instructions on issues like the burden of proof and reasonable doubt, and would also instruct the jury on the essential elements of an FCA claim. When the district court called for any final comments, the defendant asked whether the court would read any of the relator’s proposed instructions. The court responded that it was “not reading anybody’s instruction[s]” and it had “the areas” it was “going to instruct on.” The relator indicated he had no further objections.
Even assuming that the district court’s statements constituted a final ruling that foreclosed further discussion of the issue, this court cannot discern whether it considered the relator’s proposed instructions and rejected them for their substance, or simply believed that its own instructions were an adequate substitute. To preserve the issue, the relator could have sought clarification as to the basis for rejecting his instructions, or he could have timely objected. He did neither.