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No. 99-513


In the Supreme Court of the United States



TEXAS TECH UNIVERSITY, ET AL., CROSS-PETITIONERS

v.

UNITED STATES OF AMERICA,
EX REL. CAROL RAE COOPER FOULDS, ET AL.



ON CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT



MEMORANDUM FOR THE UNITED STATES



SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217





QUESTION PRESENTED

Whether a State or state agency is a "person" subject to potential liability under the False Claims Act, 31 U.S.C. 3729.






In the Supreme Court of the United States



No. 99-513

TEXAS TECH UNIVERSITY, ET AL., CROSS-PETITIONERS

v.

UNITED STATES OF AMERICA,
EX REL. CAROL RAE COOPER FOULDS, ET AL.



ON CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT



MEMORANDUM FOR THE UNITED STATES





OPINIONS BELOW

The opinion of the court of appeals (99-365 Pet. App. 1a-34a)* is reported at 171 F.3d 279. The opinion of the district court (99-365 Pet. App. 35a-50a) is reported at 980 F. Supp. 864.




JURISDICTION

The judgment of the court of appeals was entered on March 29, 1999. A petition for rehearing was denied on June 1, 1999 (99-365 Pet. App. 51a-52a). Petitions for a writ of certiorari were filed on August 23, 1999 (No. 99-321) and August 27, 1999 (No. 99-365). The conditional cross-petition for a writ of certiorari was filed on September 20, 1999. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).





STATEMENT

1. The False Claims Act (FCA), 31 U.S.C. 3729 et seq., prohibits a variety of deceptive practices involving government funds and property. 31 U.S.C. 3729(a)(1)-(7). A "person" who violates the FCA "is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains." 31 U.S.C. 3729(a). Suits to collect the statutory penalties may be brought either by the Attorney General, or by a private person (known as a relator) in the name of the United States, in an action commonly referred to as a qui tam action. See 31 U.S.C. 3730(a) and (b)(1); 99-365 Pet. 3.

2. The instant case involves a qui tam action filed by Carol Rae Cooper Foulds. The defendants included Texas Tech University and Texas Tech University Health Sciences Center. Those state entities are the cross-petitioners in this Court. The district court denied the state defendants' motion to dismiss the qui tam claims against them. 99-365 Pet. App. 35a-50a. The court of appeals reversed, holding that the suit was barred by the Eleventh Amendment. Id. at 1a-34a; see 99-365 Pet. 4-5.

3. The relator and the United States filed petitions for a writ of certiorari. See United States ex rel. Foulds v. Texas Tech Univ., No. 99-321; United States v. Texas Tech Univ., No. 99-365. Those petitions present the question whether the Eleventh Amendment bars a qui tam suit against a State or state agency. Those petitions are currently pending before this Court.





DISCUSSION

The conditional cross-petition for a writ of certiorari argues (at 14) that, if this Court grants certiorari in No. 99-321 or No. 99-365, it should also consider the question whether a State or a state agency is a "person" subject to potential liability under 31 U.S.C. 3729(a). On November 29, 1999, this Court heard oral argument in Vermont Agency of Natural Resources v. United States ex rel. Stevens, No. 98-1828. That case presents the same question of statutory interpretation that is presented in the conditional cross-petition here, as well as the same Eleventh Amendment question that is presented in Nos. 99-321 and 99-365. See 98-1828 Pet. at i. The conditional cross-petition for a writ of certiorari should therefore be held pending this Court's decision in Vermont Agency of Natural Resources and then disposed of as appropriate.




CONCLUSION

The conditional cross-petition for a writ of certiorari should be held pending this Court's decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens, No. 98-1828 (argued Nov. 29, 1999), and disposed of as appropriate in light of the resolution of that case.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General


DECEMBER 1999


* References to "99-365 Pet. App." are to the appendix to the petition for a writ of certiorari in United States v. Texas Tech Univ., No. 99-365.