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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.