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No. 99-956


In the Supreme Court of the United States


STATE OF TEXAS, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, 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 et seq.

In the Supreme Court of the United States


No. 99-956

STATE OF TEXAS, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, 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 (99-774 Pet. App. 1a-2a)* is not reported. The opinion of the district court (99-774 Pet. App. 3a-41a) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on August 5, 1999. Petitions for a writ of certiorari were filed on November 2, 1999 (No. 99-774) and November 3, 1999 (No. 99-779). The conditional cross-petition for a writ of certiorari was filed on December 2, 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); 99-774 Pet. 3.

2. The instant case involves a qui tam action filed by James M. Churchill. The defendants included the State of Texas and three state agencies. 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. 99-774 Pet. App. 3a-41a. The court of appeals reversed, holding that the suit was barred by the Eleventh Amendment. Id. at 1a-2a; see 99-774 Pet. 5.

3. The United States and the relator each filed a petition for a writ of certiorari. See United States v. Texas, No. 99-774; United States ex rel. Churchill v. Texas, No. 99-779. Those petitions present the question whether the Eleventh Amendment bars a qui tam suit against a State or state agency. The petitions are currently pending before this Court.

DISCUSSION

The conditional cross-petition for a writ of certiorari argues (at 16) that, if this Court grants certiorari in No. 99-774 and/or No. 99-779, 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. 99-774 and 99-779. 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



FEBRUARY 2000

* References to "99-774 Pet. App." are to the appendix to the petition for a writ of certiorari in United States v. Texas, No. 99-774.