United States Ex Rel. King v. University of Texas Health Science Center-Houston

Case: 12-20795 Document: 00512429000 Page: 1 Date Filed: 11/04/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 4, 2013

No. 12-20795

Lyle W. Cayce

Clerk

United States of America, ex rel, TERRI KING,

Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER - HOUSTON,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-18

Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit

Judges.

PER CURIAM: *

Terri King (“King”) appeals the district court’s dismissal of claims she

brought on behalf of the United States for alleged violations of the False

Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq. The district court dismissed

King’s claims for lack of subject-matter jurisdiction and for failure to state a

claim upon which relief can be granted, holding that the University of Texas

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5th

Cir. R. 47.5.4.

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Health Science Center-Houston (“UTHSCH” or “the Center”) is not subject to

suit under the FCA’s qui tam provisions and, in addition, is entitled to

sovereign immunity. We AFFIRM.

FACTS AND PROCEEDINGS

King is a former associate professor at UTHSCH. From 2001–2005, she

served in the Center’s Department of Internal Medicine. In 2005, she

accepted a position in the Center’s Department of Pediatrics. In March of

2001, King began working as a statistician and geneticist in a research lab

under Dr. Dianna M. Milewicz’s supervision. Milewicz’s research focused on

thoracic aortic dissection. According to King’s complaint, she began to notice

discrepancies in Milewicz’s data in 2004. King alleges that “[w]hen she began

to bring these discrepancies to the attention of Milewicz, Milewicz began a

retaliatory campaign against King that began with the writing of a false and

defamatory employee performance review.”

King filed suit on January 4, 2011, alleging that Milewicz falsified

research data and results and failed to obtain her human research subjects’

written informed consent. She claims that the fraud was in connection with

government-funded research and that Milewicz used falsified results in order

to obtain federal funding. The Center is claimed to have defrauded the

federal government by, among other things, covering up Milewicz’s

misconduct relating to federal research grants. King also claims that the

Center retaliated against her for reporting this misconduct by hampering her

research, relocating her to less favorable positions, and constructively firing

her when she continued to raise concerns.

King’s complaint alleges that the Center’s actions constituted false

claims under the FCA because, among other things, it “failed to fully

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investigate and fraudulently covered up research misconduct by Milewicz in

an effort to allow her and other researchers full access to federal grants for

research.” King also asserts a private action for retaliation and wrongful

termination under the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h),

because “UTHSCH demoted King in retaliation[,] . . . derailed any chance of

King becoming a tenured member of the faculty at UTHSCH[,] . . . and

ultimately terminated King as a result of her reports of research misconduct.”

On February 22, 2012, the United States filed notice that it was not

intervening.

On May 9, 2012, UTHSCH moved to dismiss King’s complaint on three

separate grounds: (1) UTHSCH, as a state agency, is not subject to liability

under the FCA; (2) sovereign immunity bars King’s FCA claims; and (3)

King’s complaint did not comply with the particularity requirements of Rule

9(b) of the Federal Rules of Civil Procedure. The district court granted the

Center’s motion on October 31, 2012, dismissing the case in its entirety “for

lack of subject matter jurisdiction and for failure to state a claim upon which

relief can be granted.” 1 King appeals.

STANDARD OF REVIEW

“We review a district court's ruling on a Rule 12(b)(1) motion to dismiss

for lack of subject matter jurisdiction de novo.” Raj v. La. State Univ., 714

F.3d 322, 327 (5th Cir. 2013). This court also “review[s] a district court’s

dismissal under Rule 12(b)(6) de novo, accepting all well-pleaded facts as true

and viewing those facts in the light most favorable to the plaintiffs.” Doe ex

rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th

1 Because the district court focused on the Center’s sovereign immunity and whether

it was subject to suit under the FCA’s qui tam provisions, it did not address UTHSCH’s

arguments under Rule 9(b).

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Cir. 2012) (internal quotation marks omitted). Finally, “sovereign immunity

is a question of law which this court reviews de novo.” Koehler v. United

States, 153 F.3d 263, 265 (5th Cir. 1998); see also Khan v. S. Univ. & Agric. &

Mech. Coll. Bd. of Supervisors, No. 03-30169, 2005 WL 1994301, at *2 (5th

Cir. Aug. 19, 2005).

DISCUSSION

King challenges the district court’s dismissal of her qui tam claim

based on its finding that UTHSCH is an “arm of the state,” its holding that

the Center is entitled to sovereign immunity from her retaliation claim, and

its dismissal of her complaint without first granting King an opportunity to

amend. UTHSCH claims that this court lacks jurisdiction over King’s appeal

because she failed to timely file her notice of appeal and, as a matter of law,

did not show excusable neglect or good cause in her request for an extension

of time.

I. Timeliness of King’s Appeal

“[T]he taking of an appeal within the prescribed time is mandatory and

jurisdictional.” Bowles v. Russell, 551 U.S. 205, 209 (2007) (internal

quotation marks omitted). Under 28 U.S.C. § 2107(a), parties must file notice

of appeal “within thirty days after the entry of [any civil] judgment, order or

decree.” See also Fed. R. App. Proc. 4(a)(1)(A). But “[t]he district court may,

upon motion filed not later than 30 days after the expiration of the time

otherwise set for bringing appeal, extend the time for appeal upon a showing

of excusable neglect or good cause.” 28 U.S.C. § 2107(c).

The district court entered its order of dismissal on October 31, 2012.

King filed her notice of appeal, along with a motion for extension of time

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pursuant to Federal Rule of Procedure 4(a)(5), on December 5, 2012, thirty-

five days later. Although she acknowledges that her appeal was late, she

argues there was “excusable neglect” because her attorneys initially believed

that because the United States was the “real party in interest” in FCA qui

tam actions, Rule 4(a)(1)(B) applied, giving them sixty days to file the notice

of appeal. Her attorneys had busy trial dockets during November, and did

not realize until early December that, under United States ex rel. Eisenstein

v. City of New York, 556 U.S. 928 (2009), the thirty-day deadline for filing a

notice of appeal applies in FCA qui tam actions in which the United States

has not intervened.

The Fifth Circuit follows the Supreme Court’s guidance in determining

when to permit extensions of time under Rule 4(a)(5).

When evaluating excusable neglect under Rule 4(a)(5), this court

relies on the following standard:

The determination is at bottom an equitable one, taking account

all of the relevant circumstances surrounding the party’s

omission. These include . . . the danger of prejudice . . . , the

length of the delay and its potential impact on judicial

proceedings, the reason for the delay, including whether it was

within the reasonable control of the movant, and whether the

movant acted in good faith.

Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir. 2007)

(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395

(1993)). We review a ruling on a Rule 4(a)(5) motion for excusable neglect for

abuse of discretion. Id.

UTHSCH claims that the district court abused its discretion by

allowing King’s Rule 4(a)(5) extension. The Center cites two cases for the

propositions that neither ignorance of the rules nor counsel’s busy law

practice is sufficient to establish excusable neglect, Pioneer, 507 U.S. at 395,

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and ignorance of the law does not excuse the failure to comply with a

deadline that is unambiguous. Halicki v. La. Casino Cruises, Inc., 151 F.3d

465, 470 (5th Cir. 1998).

The Center overstates Pioneer’s holding. The Court held only that

counsels’ failure to file on time could be imputed to their clients, and did not

create rigid rules forbidding extensions of time based on ignorance of the

rules or an attorney’s workload. Pioneer, 507 U.S. at 397–98. Indeed, the

Pioneer court focused on “the respondents’ good faith and the absence of any

danger of prejudice . . . or of disruption to efficient judicial administration

posed by the late filings.” Id. at 397. The delay here was only five days and

did not prejudice UTHSCH. Pioneer does not compel us to find an abuse of

discretion in the district court’s grant of King’s motion for an extension of

time.

Nor does our opinion in Halicki foreclose a finding of excusable neglect

in this case. In Halicki, we rejected a litigant’s contention “that

misconstruction of procedural rules necessarily should result in a finding of

‘excusable neglect’ where no prejudice results to the opposing party.” Halicki,

151 F.3d at 469 (emphasis in original). We did not hold that

misinterpretation of the rules could never constitute excusable neglect. And

although we stated that “a district court’s determination that the neglect was

inexcusable is virtually unassailable” when “the rule at issue is

unambiguous,” id. at 470, this observation does not control our review of a

district court’s finding that the neglect was excusable. 2

2We also agree with the district court’s finding that “Rule 4(a)(1)(B)’s language

permitting a notice of appeal to be filed within 60 days of the trial court’s judgment when

the United States is a party to the case is ambiguous in the context of FCA qui tam

actions.” Although King’s counsel should have known that Eisenstein held the 30-day rule

to apply to FCA qui tam actions, “‘excusable neglect’ is understood to encompass situations

in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer,

507 U.S. at 394.

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“Given the leeway granted to district courts” when evaluating

excusable neglect, Stotter, 508 F.3d at 820, we hold that the district court did

not abuse its discretion in granting King’s motion for an extension of time to

file her notice of appeal.

II. Ability to Sue UTHSCH Under the FCA’s Qui Tam Provision

The FCA imposes liability to “any person who . . . knowingly presents,

or causes to be presented, a false or fraudulent claim for payment or

approval” or “knowingly makes, uses, or causes to be made or used, a false

record or statement material to a false or fraudulent claim.” 31 U.S.C

§ 3729(a)(1)(A)–(B) (emphasis added). In Stevens, the Supreme Court held

“that the False Claims Act does not subject a State (or state agency) to

liability” because neither a state nor state agency falls within the FCA’s

definition of a “person.” Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529

U.S. 765, 787–88 (2000).

King argues that the district court erred in dismissing her qui tam

claims “by erroneously concluding that UTHSCH is an arm of the State of

Texas and thus . . . not a ‘person’ who can be liable under the federal False

Claims Act.” In her opening brief, King states also that “[t]he Stevens case

was wrongly decided,” that it “created an unwarranted exception to the FCA

for states and state agencies,” and that “[i]t is error to dismiss the qui tam

claims against UTHSCH when Stevens should instead be reversed.” Because

we lack the authority to reverse Supreme Court decisions, we focus instead

on her arguments that UTHSCH is not an “arm of the state.”

In Stevens, the Supreme Court stated that in cases where defendants

move for dismissal on both statutory and Eleventh Amendment grounds,

courts should address the statutory question first:

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We . . . have routinely addressed before the question whether the

Eleventh Amendment forbids a particular statutory cause of

action to be asserted against States, the question whether the

statute itself permits the cause of action it creates to be asserted

against States (which it can do only by clearly expressing such

an intent). When these two questions are at issue, not only is

the statutory question “logically antecedent to the existence of”

the Eleventh Amendment question, but also there is no realistic

possibility that addressing the statutory question will expand

the Court’s power beyond the limits that the jurisdictional

restriction has imposed.

Stevens, 529 U.S. at 779 (internal citations omitted). Pursuant to Stevens, we

address first whether the FCA allows for King’s suit against the UTHSCH.

As did the district court, we evaluate whether the Center is an arm of

the state using the six-factor test set forth in Clark v. Tarrant County, Texas,

798 F.2d 736, 744–45 (5th Cir. 1986). Although Clark’s arm-of-the-state

analysis took place in the context of determining Eleventh Amendment

immunity, we have applied its test when determining whether an entity was

subject to FCA liability. See U.S. ex rel. Adrian v. Regents of Univ. of Calif.,

363 F.3d 398, 401 (5th Cir. 2004).

In deciding whether a suit against an entity is in reality a suit

against the state, several factors must be determined: (1)

whether the state statutes and caselaw characterize the agency

as an arm of the state; (2) the source of funds for the entity; (3)

the degree of local autonomy the entity enjoys; (4) whether the

entity is concerned primarily with local, as opposed to statewide

problems; (5) whether the entity has authority to sue and be sued

in its own name; and (6) whether the entity has the right to hold

and use property.

Khan, 2005 WL 1994301, at *2; see also Richardson v. S. Univ., 118 F.3d 450,

452 (5th Cir. 1997). We address each factor in turn.

A. Texas Statutes and Caselaw

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A survey of Texas statutes and caselaw reveals that the first Clark

factor weighs in favor of finding UTHSCH an arm of the state. The state

constitution provides for the establishment of the University of Texas

System. Tex. Const. art. VII, § 10 (“The Legislature shall as soon as

practicable establish, organize and provide for the maintenance, support and

direction of a University of the first class, to be located by a vote of the people

of this State, and styled ‘The University of Texas’, for the promotion of

literature, and the arts and sciences.”). The Center is part of the University

of Texas System. Tex. Educ. Code § 65.02(a) (“The University of Texas

System is composed of the following institutions and entities: . . . (9) The

University of Texas Health Science Center at Houston.”). Texas statutes

consider “a [public] university system or an institution of higher education” to

be a “state agency.” Tex. Gov’t Code § 572.002(10)(B).

Texas courts also treat UTHSCH to be a state agency. In Klein v.

Hernandez, 315 S.W.3d 1, 8 (Tex. 2010), the Texas Supreme Court held that a

resident was an “employee of a state agency” in finding him entitled to

immunity. See also id. at 6 (referencing legislative materials referring to

UTHSCH as “a state agency-owned school”). In Illoh v. Carroll, No. 14-09-

01001-CV, 2012 WL 1570991, at *1 (Tex. App.—Houston [14th Dist.] May 3,

2012, no pet. h.), a Texas Court of Appeals referred to the “governmental-

entity University of Texas Health Science Center at Houston” when

evaluating whether the Texas Tort Claims Act’s limited waiver of immunity

applied to a UTHSCH doctor. In Cheatham, the court referred to “UTHSCH,

a governmental unit” when reviewing claims against “two UTHSCH-

employed doctors.” Univ. of Tex. Health Sci. Ctr. at Hous. v. Cheatham, 357

S.W.3d 747, 748 (Tex. App.—Houston [14th Dist.] 2011, review denied). The

opinion goes on to refer to the defendants as “government-employed doctor[s]”

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and reviews statutory provisions governing the conduct of “government

employee[s].” Id. at 749.

King argues that these cases “never actually characterize UTHSCH as

an ‘arm of the state,’” that Klein never directly implicated UTHSCH or

sovereign immunity, and that other cases referring to the Center as a

“governmental unit” are meaningless because that term is much broader

than what is required for finding an entity to be an “arm of the state.” We

acknowledge that there does not appear to be any case that evaluates all six

Clark factors and finds the Center to be an arm of the state for either FCA or

sovereign immunity purposes. But we do not read Clark’s first factor as

requiring an entity claiming sovereign immunity to first identify on-point

court decisions evaluating the issue and holding it to be entitled to sovereign

immunity. If that were the case, we would not need a six-factor test.

We find the aforementioned Texas authorities to weigh in favor of

UTHSCH being an arm of the state.

B. Sources of Funding

According to King, “[f]rom 2005 until 2009, state funding and federal

funding have contributed an approximately equal percentage of the revenue

collected by UTH[S]CH” and “[s]tate funding has only contributed between

23% and 26.5% of the gross revenue for UTHSCH from 2005 to 2009.”

Despite King’s attempts to downplay state funding’s importance, the

magnitudes are substantial. The district court noted that in 2009, UTHSCH

took in more than $26 million from student tuition and fees, received about

$170 million in direct state appropriations, and received over $25 million

from other state agencies.

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King asserts that despite the significant amounts of state funding,

UTHSCH would be unable to reach into segregated state funds in order to

pay a judgment here because the Center’s federal and state funding are

“strictly and carefully segregated,” with state funding only available to

support state-funded missions. We disagree.

“[T]he most significant factor in assessing an entity’s status is whether

a judgment against it will be paid with state funds.” Richardson, 118 F.3d at

455 (quoting McDonald v. Bd. of Miss. Levee Comm’rs, 832 F.2d 901, 907 (5th

Cir. 1987)). But this does not mean we can find sovereign immunity or an

arm of the state only “where payment would be directly out of the state

treasury.” United Carolina Bank v. Bd. of Regents of Stephen F. Austin State

Univ., 665 F.2d 553, 560 (5th Cir. Unit A 1982). “The crucial question . . . is

whether use of . . . unappropriated funds to pay a damage award . . . would

interfere with the fiscal autonomy and political sovereignty of Texas.” Id. at

560–61.

The district court in United Carolina found that the Eleventh

Amendment did not bar suit against Stephen F. Austin State University

(“SFA”) in part because “SFA could itself pay such an award because it had

substantial unappropriated, separately held, locally generated funds” and, as

a result, “payment of an award c[ould] be made without resort to general

revenues of the state or legislative appropriation.” Id. at 559–60. We

reversed, holding that “[t]he key is not the ability to identify segregated

funds, but the larger concept of jurisdiction over state sovereignty which the

eleventh amendment proscribes.” Id. at 560. We found that the SFA’s local

funds were “either held in the Treasury or restricted as to use,” were “subject

to audit and budget planning,” and as a result “any award from those funds

would directly interfere with the state’s fiscal autonomy.” Id. at 561.

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Similarly, in Jagnandan v. Giles, we held that tuition refunds would

implicate the state treasury. 538 F.2d 1166 (5th Cir. 1976). The tuition “fees

were factored into the preparation of the annual budget for [Mississippi State

University] and were relied upon by the state legislature in determining the

maximum amount of expenditures allowed.” Id. at 1176. The refunds would

have “add[ed] an expenditure not figured in the budget.” Id. We explained:

The Eleventh Amendment was fashioned to protect against

federal judgments requiring payment of money that would

interfere with the state’s fiscal autonomy and thus its political

sovereignty. Retroactive monetary relief . . . would have just that

effect. Mississippi has devised a complex statutory design which

governs the state’s schools of higher education and their control

by the Board of Trustees. The Board is required to submit

budgetary proposals for legislative acceptance. To require refund

payments from the Board for overpayment of tuition fees would

be the kind of tampering the Eleventh Amendment sought to

avoid.

Id. (footnote omitted).

We hold that Texas provides substantial funding to the Center and that

allowing for civil recovery would interfere with the state’s fiscal autonomy,

even if payment is not made directly from the state treasury. Clark’s second

factor supports finding UTHSCH to be an arm of the state.

C. Degree of Local Autonomy and Right to Hold and Use Property

A board of regents, appointed by the governor with the advice and

consent of the senate, governs the University of Texas System, and

“govern[s], operate[s], support[s], and maintain[s] each of the component

institutions.” Tex. Educ. Code §§ 65.11, 65.31. All UTHSCH contracts must

be in accordance with board rules or specially approved by the board of

regents. Id. § 65.35. As a state agency, the Center is required to follow

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specific accounting and financial reporting requirements. Tex. Gov’t Code §

2101.011(b).

With respect to UTHSCH’s right to hold and use property, “[t]he board

of regents of the University of Texas System has the sole and exclusive

management and control of the lands set aside and appropriated to, or

acquired by, The University of Texas System.” Tex. Educ. Code § 65.39. “The

board has the power of eminent domain to acquire for the use of the

university system any land that may be necessary and proper for carrying

out its purposes. . . . The taking of the property is declared to be for the use

of the state.” Id. § 65.33

We find that Clark’s third and sixth factors support finding UTHSCH

to be an arm of the state.

D. Local vs. Statewide Concerns

The University of Texas System, of which UTHSCH is a part, has

locations throughout the state of Texas. We do not accept King’s contention

that the Center is primarily concerned with local issues because it “does not

provide statewide services or have a statewide presence” since “[a]ll of its

facilities are in Houston.” Education and research are statewide concerns.

See e.g., Tex. Educ. Code § 61.002 (Texas Higher Education Board created to

“benefit the citizens of the state in terms of the realization of the benefits of

an educated populace”); Richardson, 118 F.3d at 455–56 & n.15 (“That

Southern is only one of many state-funded schools does not deprive it of

Eleventh Amendment immunity.”).

Clark’s fourth factor supports finding UTHSCH to be an arm of the

state.

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E. Authority to Sue and Be Sued in its Own Name

Texas law provides for the University of Texas System’s ability to sue

on behalf of a component institution “to recover a delinquent loan, account, or

debt owed.” Tex. Educ. Code § 65.42. Texas statutory law does not appear to

authorize the Center to bring suit or allow plaintiffs to sue UTHSCH directly.

Nonetheless, King identifies several cases in which UTHSCH either

sued or was sued, and in none of them did it object to proceeding in its own

name or insist that the University of Texas System be substituted in its

stead. See Duncan v. Univ. of Tex. Health Sci. Ctr. at Hous., 469 F. App’x 364

(5th Cir. 2012); Watson v. Univ. of Tex. Health Sci. Ctr. at Hous., No. H-09-

0881, 2009 WL 1476469 (S.D. Tex. May 27, 2009); Butcher v. Univ. of Tex.

Health Sci. Ctr. at Hous., No. H-08-cv-0244, 2008 WL 4935723 (S.D. Tex.

Nov. 18, 2008); Cheatham, 357 S.W.3d 747. The number of cases in which

the Center is a named party leads us to conclude that, for arm-of-the-state

purposes, it has the authority to sue and be sued in its own name. 3

Clark’s fifth factor weighs against finding UTHSCH to be an arm of the

state. But because five out of the six Clark factors weigh in favor of finding

the Center to be one, we conclude that UTHSCH is an arm of the state and

that Stevens applies. UTHSCH is not a “person” under the FCA, and is not

subject to qui tam liability. We affirm the district court’s dismissal of King’s

qui tam claim under Rule 12(b)(6) for failure to state a claim under the FCA.

3We note that these cases focusing on an entity’s ability to sue or be sued are usually

within the context of determining whether a state has waived immunity. As noted above,

the arm-of-the-state test was developed for sovereign immunity purposes. A recent Fourth

Circuit decision case applied a four-factor test that excludes “the authority to sue and be

sued in its own name” from the analysis. U.S. ex rel. Oberg v. Ky. Higher Educ. Student

Loan Corp., 681 F.3d 575, 580 (4th Cir. 2012); see also S.C. Dep’t of Disabilities & Special

Needs v. Hoover Universal, Inc., 535 F.3d 300, 303 (4th Cir. 2008). Because our result

would be the same under either our current test or the Fourth Circuit’s, there is no need to

change our test.

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III. Retaliation Claim

King sues UTHSCH for retaliation pursuant to the FCA’s anti-

retaliation provision, 31 U.S.C. § 3730(h). In relevant part, § 3730(h)

provides that:

Any employee, contractor, or agent shall be entitled to all relief

necessary to make that employee, contractor, or agent whole, if

that employee, contractor, or agent is discharged, demoted,

suspended, threatened, harassed, or in any other manner

discriminated against in the terms and conditions of employment

because of lawful acts done by the employee, contractor, agent or

associated others in furtherance of an action under this section or

other efforts to stop 1 or more violations of this subchapter.

Congress amended this section in 2009. The previous version stated that

“[a]ny employee who is discharged, demoted, suspended, threatened,

harassed, or in any other manner discriminated against in the terms and

conditions of employment by his or her employer . . . shall be entitled to all

relief necessary to make the employee whole.” (Emphasis added.)

In Elizondo, a district court applied Stevens’s holding that states and

state agencies are not within the FCA’s definition of “any person” to the older

version of § 3730(h)’s use of the phrase “his or her employer” and held that

states are not subject to suit under § 3730(h). Elizondo v. Univ. of Tex. at

San Antonio, No. CIVASA-04-CA-1025-XR, 2005 WL 823353, at *4–5 (W.D.

Tex. Apr. 7, 2005). But the amendment to § 3730(h) prevents us from

applying Elizondo’s analysis here. See Bell v. Dean, No. 2:09-CV-1082-WKW,

2010 WL 1856086, at *4 (M.D. Ala. May 4, 2010) (“Elizondo and the other

cases are no longer on all fours . . . given the 2009 amendment removing the

word ‘employer’ from the statute”). Unlike the Court in Stevens, we are

unable to resolve all of our case’s issues on statutory grounds, and must

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review the Center’s argument that it is entitled to sovereign immunity from

FCA anti-retaliation claims.

“Congress may abrogate the States’ constitutionally secured immunity

from suit in federal court only by making its intention unmistakably clear in

the language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 228 (1989)

(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). In

Foulds, we held that the Eleventh Amendment barred a qui tam action

seeking damages against Texas Tech University and Texas Tech University

Health Sciences Center. U.S. ex rel. Foulds v. Tex. Tech Univ., 171 F.3d 279,

294–95 (5th Cir. 1999); see also Nelson v. Univ. of Tex. at Dall., 535 F.3d 318,

320 (5th Cir. 2008) (FMLA action against University of Texas at Dallas

“subject to an Eleventh Amendment immunity defense”).

King does not argue that § 3730 intends to strip states of their

sovereign immunity, or any other reason to find that Congress abrogated

sovereign immunity here. Rather, she applies her arguments against finding

UTHSCH to be an arm of the state in the statutory context to the sovereign

immunity inquiry as well. We apply our finding that UTHSCH is an arm of

the state and hold that sovereign immunity bars King’s claim for monetary

relief under the FCA’s anti-retaliation provision.

We affirm the district court’s dismissal of King’s retaliation claim

under Rule 12(b)(1) for lack of subject-matter jurisdiction.

CONCLUSION

We AFFIRM the district court’s dismissal of King’s suit. 4

4 King challenges the district court’s dismissal of her complaint without first granting her

leave to amend. Because we affirm the district court’s dismissal based on our holding that

UTHSCH is an arm of the state and not because of any pleading deficiency under Rule

12(b)(6) or Rule 9(b), amendment would be futile. We find no error in the district court’s

decision not to grant leave to amend before dismissing King’s case.

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