No. 99-1705
In the Supreme Court of the United States
TEXAS SOUTHERN UNIVERSITY, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA EX REL.
CHANDRA MITTAL, ET AL.
ON CONDITIONAL CROSS-PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
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 in a suit by a qui tam relator under the False Claims Act, 31
U.S.C. 3729 et seq.
In the Supreme Court of the United States
No. 99-1705
TEXAS SOUTHERN UNIVERSITY, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA EX REL.
CHANDRA MITTAL, ET AL.
ON CONDITIONAL CROSS-PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (99-1544 Pet. App. 1a-2a)* is unreported.
The opinion of the district court (99-1544 Pet. App. 3a-21a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 20, 1999. Petitions
for a writ of certiorari were filed on March 20, 2000 (Nos. 99-1544 and
99-1566). The conditional cross-petition for a writ of certiorari was filed
on April 19, 2000. 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);
99-1544 Pet. 3.
2. The instant case involves a qui tam action filed by Dr. Chandra Mittal.
The defendants included Texas Southern University and four of its officials.
Those defendants are the cross-petitioners in this Court. The district court
denied the defendants' motion to dismiss the qui tam claims against them.
99-1544 Pet. App. 3a-21a. The court of appeals reversed, holding that the
suit was barred by the Eleventh Amendment. Id. at 1a-2a; see 99-1544 Pet.
4-5.
3. The United States-which had intervened in the court of appeals to defend
the constitutionality of the FCA's qui tam provisions-and the relator each
filed a petition for a writ of certiorari. See United States v. Texas Southern
Univ., No. 99-1544; United States ex rel. Mittal v. Texas Southern Univ.,
No. 99-1566. 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.
ARGUMENT
The conditional cross-petition for a writ of certiorari argues that, if
this Court grants certiorari in No. 99-1544 and/or No. 99-1566, 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 May 22, 2000,
this Court decided that question as applied to a qui tam suit like this,
in Vermont Agency of Natural Resources v. United States ex rel. Stevens,
No. 98-1828, holding that the FCA does not subject a State or state agency
to liability in qui tam suits brought under the Act. See slip op. 21. In
light of this Court's decision in Vermont Agency of Natural Resources, the
question presented in Nos. 99-1544 and 99-1566-i.e., whether the Eleventh
Amendment bars an FCA qui tam suit against a State or state agency-has no
practical significance for the proper resolution of this case. The petitions
in Nos. 99-1544 and 99-1566 should therefore be denied. Under Rule 13.4
of the Rules of this Court, the conditional cross-petition in the instant
case should be denied as well.
Denial of the petitions and cross-petition is appropriate even though the
constitutional question decided by the court of appeals was left unresolved
by this Court in Vermont Agency of Natural Resources. See slip op. 21. The
judgment of the court of appeals- though not its reasoning-is compelled
by the holding in Vermont Agency of Natural Resources. The court of appeals
in this case ordered dismissal of the qui tam relator's complaint, and that
is precisely the disposition required by this Court's determination in Vermont
Agency of Natural Resources that the FCA does not authorize a qui tam suit
against a State or state agency. Denial of the petitions and cross-petition
in this case will leave that disposition undisturbed. Denial of the petitions
and cross-petition is consistent with this Court's dispositions in United
States ex rel. Foulds v. Texas Tech University, cert. denied, No. 99-321
(May 30, 2000); United States v. Texas Tech University, cert. denied, No.
99-365 (May 30, 2000); Texas Tech University v. United States ex rel. Foulds,
cert. denied, No. 99-513 (May 30, 2000); United States v. Texas, cert. denied,
No. 99-774 (May 30, 2000); United States ex rel. Churchill v. Texas, cert.
denied, No. 99-779 (May 30, 2000); and Texas v. United States, cert. denied,
No. 99-956 (May 30, 2000). In those cases the Court denied four petitions
for certiorari, and two conditional cross-petitions, in a procedural posture
identical to that of the present case.
CONCLUSION
The conditional cross-petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JUNE 2000
* References to "99-1544 Pet. App." are to the appendix to the
petition for a writ of certiorari in United States v. Texas Southern University,
No. 99-1544.