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.