Judge Robert L. Wilkins made the comment at the end of a nearly three-hour hearing on the Justice Department's lawsuit, which also named former Armstrong team director Johan Bruyneel and team management company Tailwind Sports as defendants.
The Justice Department this year joined a whistle-blower lawsuit filed by former Armstrong teammate Floyd Landis. Under the False Claims Act, whistle-blowers can share with the government in any recovery of money based upon their disclosures. But the government has not joined the portion of Landis' lawsuit against other defendants, including financier Thomas Weisel, who was principal owner of Tailwind Sports. Monday's hearing was on motions by the defendants to dismiss the case.
Wilkins said that while he may dismiss some of the defendants, "I doubt it as to all." The judge said he'd rule within 30 days. He wrapped up the hearing about an hour before Senate Republicans blocked his nomination to the U.S. Court of Appeals for the District of Columbia Circuit — the third straight nominee of President Barack Obama that the GOP has blocked to the powerful court.
The Justice Department claimed that the U.S. Postal Service was tainted by its sponsorship of Armstrong's team while he used performance-enhancing drugs to win the Tour de France. That came following Armstrong's admission in January to using performance-enhancing drugs after years of denials. Armstrong's seven Tour de France victories were taken away last year and he was banned for life from the sport.
The Postal Service paid about $40 million to be the title sponsor of Armstrong's teams from 1998 to 2004, about $18 million of which went to Armstrong, according to the government's complaint, which asked for triple damages that are determined at trial.
Much of Monday's hearing centred on whether the government's lawsuit was barred by the statute of limitations. Under the False Claims Act, the government must file a suit within six years of a violation, or within three years of when the facts "are known or reasonably should have been known" by the responsible U.S. official. The government argues that it became aware of Armstrong's cheating when Landis filed his lawsuit in June 2010, and thus acted within the three-year window.
Armstrong lawyer Elliot Peters argued that the Postal Service should have known back in 2000, when its sponsorship agreement with Armstrong's team came up for renewal, because the Postal Service was aware that French authorities had begun an investigation into allegations that the team was doping.
"They did absolutely nothing to investigate," Peters said. The Postal Service could have sat members of Armstrong's team down and asked questions, but failed to do so, he added.
He also said the Postal Service got to enjoy several years of "substantial financial fruits" from the sponsorship deal.
Justice Department lawyer Robert Chandler countered that Armstrong had lied about using performance enhancing drugs for more than a decade, and "incredibly, he now says the government should have seen through" that. Chandler said the mere allegation that Armstrong was cheating wasn't sufficient to launch a government investigation, noting that many high-profile athletes are accused of using PEDs.
Armstrong "was bound to be accused of doping by someone," Chandler said.
Wilkins asked him what would have prompted the government to launch an inquiry, adding that it sounded like the government's view was "nothing."
"I would not say nothing," Chandler responded, but he said suspicion was not enough.
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