# Respondents Brief — Vermont Agency of Natural Resources v. United States Ex Rel. Stevens > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0278%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 765 ## Text * Pid - ~ 17 No. 98-1828 Ney IN THE Supreme Court of the United States STATE OF VERMONT AGENCY OF NATURAL RESOURCES, Petitioner, Vv. UNITED STATES OF AMERICA EX REL. JONATHAN STEVENS, Respondent. On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit BRIEF FOR RESPONDENT Of Counsel: THEODORE B. OLSON STEPHEN J. SOULE Counsel of Record MATTHEW E.C. PIFER THOMAS G. HUNGAR MARK G. HALL MIGUEL A. ESTRADA PAUL, FRANK & COLLINS, INC GIBSON, DUNN & CRUTCHER LLP P.O. Box 1307 1050 Connecticut Avenue, N.W. Burlington, Vermont 05402 Washington, D.C. 20036 (802) 658-2311 (202) 955-8500 Counsel for Respondent ) QUESTIONS PRESENTED 1. Whether a gui fam suit against a State under the False Claims Act is barred by the Eleventh Amendment. 2. Whether a State is a “person” subject to suit under the False Claims Act, 31 U.S.C. § 3729 et seq. il PARTIES TO THE PROCEEDING All parties to the proceedings below appear in the caption. TABLE OF CONTENTS Page i ccaptenoneosesen i PARTIES TO THE PROCEEDING. .............ccccccssssccssceseseeseees ii CONSTITUTIONAL AND STATUTORY I II ED occ nccedcctsteccsicctooceesossssecssescseceses l ss csestnnomaonnnennes l SUMMARY OF ARGUMENT............:.:ccccccsscssscessseresseeesneeees 9 ECS SSE cee 11 I. THE UNITED STATES MAY USE THE “QUI TAM” VEHICLE TO SUE A STATE OF THE UNION FOR FRAUDULENTLY OBTAINING FEDERAL PROPERTY .................... 11 A. States Of The Union Have No Eleventh Amendment Immunity Against The ST 14 B. This Court Has Applied A Real-Party-In- Interest Test To Determine Whether The United States Is A Party to Litigation ............... 15 C. The United States Is The Real Party In Interest In Qui Tam Suits Under The Act........... 24 D. The False Claims Act Satisfies Any Requirement For Executive Branch Control That This Court Reasonably END aI a 33 Il. STATES OF THE UNION ARE “PERSONS” THAT MAY SUE AND BE SUED UNDER ESSERE EIA OD 37 iv TABLE OF CONTENTS—Continued Page A. Because The Court Of Appeals Lacked Jurisdiction Over Vermont's Statutory Arguments, This Court May Not Consider B. No Canon of Construction Requires This Court To Presume That States Are Not tg FS ee 40 C. The Act Unambiguously Applies To RN Se Fate Sie ieitenssvccihttidinnaanincichaslinstaians 44 CT AIS ccocrsnsecsiitutipssigiesstbinetiascideespanaiiianiabaaaliienites 49 ee > —_ - Vv TABLE OF AUTHORITIES CASES Pages(s) Alden v. Maine, 119 S. Ct. 2240 (1999) oo... .ccccccccecceees passim Alfred L. Snapp & Son, Inc. v. Puerto Rico, ER ESS ECS I Oe a Oe 23 Arizona v. California, 460 U.S. 605 (1983) ......cccccceeeeens 33 Arkansas v. Farm Credit Servs., RE EE 43 Ashwander v. Tennessee Valley Auth., (REN EIST AE a 26 Bell v. United States, 462 U.S. 356 (1983) ........cccccceeeeeeeeeees 32 Blanchard v. Bergeron, 489 U.S. 87 (1989) ......ccceceseeeenes 48 Blatchford v. Native Village of Noatak, Ay 7 RRR EE ee er passim Block v. North Dakota, 461 U.S. 273 (1983) ..........000+ 43, 49 Bowsher v. Synar, 478 U.S. 714 (1986) ......ccccccccssceeseseeeees 30 Brogan v. United States, 118 S. Ct. 805 (1998) ............0000 45 Brown v. Gardner, 513 U.S. 115 (1994) .....ccccccccccseeseeeeenees 47 California v. Deep Sea Research, Inc., I alias coc cednemepcnamiinessociansins 16 Citizens Bank v. Strumpf, 516 U.S. 16 (1995) «0.0.00: 46 City of Mesquite v. Aladdin's Castle, Inc., RS SP fii cai casi ieneninntiaicsbtnipnbbicsesisecounes 39 City of Newport v. Fact Concerts, Inc., 453 U.S. ST Tinh ciaticdedintnicsbnstpeasliajbeaundartendiemoramarnnnens 49 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. EELS RI! SE EN 38 Confiscation Cases, 74 U.S. (7 Wall.) 454 I a al arian cnc ated abliencetinatansenceorepeenenenetons 35 Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872) ........cccc-ceeseees 16 Dugan v. Rank, 372 U.S. 609 (1963) ........ccccecereeseereneeesenees 15 Edelman v. Jordan, 415 U.S. 651 (1974) ....cccccccccceseeeeeeeennes 39 Ex parte New York, No. 1, 256 U.S. 490 (1921) ........... 11,17 vi TABLE OF AUTHORITIES—Continued Page(s) Ex parte Young, 256 U.S. 123 (1908) ........ccccccceseeeeeeeeneenees 17 Ford Motor Co. v. Department of the Treasury, ik Ry Sree ee eee 17 Georgia v. Evans, 316 U.S. 159 (1942) .....cccccecceeereereeenenees 45 Gibson v. Chouteau, 80 U.S. (13 Wall.) 92 CORTE) sccrceciessscncsncacinctininsiindiliiiaialaiieesarestcctstmiscntitigsn 25, 26 Hans v. Louisiana, 134 U.S. 1 (1890) ........ccccccceeesersereeeeeneee 11 Helvering v. Stockholms Enskilda Bank, 293 CRS, BS CI acrasdasintectnecinrertiblicingitaranenencmsstnvagnatnnen, 41 Hilton v. South Carolina Public Rys. Comm'n, SOD TE, BF Ce ciciepictneteciinrttcninntenrsinnictnenss 40, 41 Ickes v. Fox, FOO U.S. 82 (1937) .....0.ccccercssecssecsessosssecseresees 3 Idaho v. Couer d'Alene Tribe, 521 U.S. 261 CRIT sccicduisentincstnguibivatininiiiaiiiatgiiabebmmbeimmaniepnaninont 17 In re Ayers, 123 U.S. 443 (1887) ........:ccesccsceeserneereeessenenes 16 In re Schimmels, 127 F.3d 875 (9th Cir. 1997) ........cccc00000+ 25 International Union of Operating Engineers v. Flair Builders, Inc., 406 U.S. 487 (1972) ....c0.-ccceeeeeeees 45 Jefferson County Pharm. Ass'n v. Abbott Labs., Pg eee 41 Kansas v. United States, 204 U.S. 331 (1907) ........ 13, 15, 16 Knowlton v. Moore, 178 U.S. 41 (1900) .......cccccccceeerereeeeees 30 Kokkonen v. Guardian Life Ins. Co., 511 U.S. DID CIB sccittietnssttninsisciiitatiitnasitninitiinisineseninennntinins 20 L ‘Invincible, 14 U.S. (1 Wheat.) 238 (1816) .........ccccceeeeeeees 31 Light v. United States, 220 U.S. 523 (1911) ........cccceee seenees 26 Louisiana v. Texas, 176 U.S. 1 (1900) ......cccccccecceeseeeeeenenenes 17 Marvin v. Trout, 199 U.S. 212 (1905) ......ccccccserereeereneeenennes 27 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 CRB IDD cetrrenescoretniciliscrenttnnguptninatneimputinniatemnntes 29, 32 Mine Safety Appliances Co. v. Forrestal, 326 CE, BIE CIE ckesnceticetecienesntinsittinitabiintiinentinnncccsgian 3, 20 Minnesota v. Hitchcock, 185 U.S. 373 (1902) .........1c0eeeeees 16 Vii TABLE OF AUTHORITIES—Continued Page(s) Missouri, Kansas & Texas Ry. Co. v. Missouri R.R. & Warehouse Comm 'nrs, ERS IEE RES + 0 ee 17,19 Missouri v. Illinois & Sanitary Dist. of Chicago, a AMEDD dilbeniisiatidindelinicidennhttiestthcnisegustecontatiines 18 Morissette v. United States, a RENEE hd ar A | Snel ee Oe 32 Myers v. United States, 272 U.S. 52 (1926) ........ccccccccesseees 30 Naganab v. Hitchcock, 202 U.S. 473 (1906) ..........ccccccee0000 16 New Hampshire v. Louisiana, 108 U.S. 76 SE Gelenpihiiaasendiliiaiemttediatiidi pti dcnsccstenpsinelies 18 North Dakota v. Minnesota, 263 U.S. 365 ARES Ero FREI AES SEAR re eno 23 Ohio v. Helvering, 292 U.S. 360 (1934) o...ccccccccccccceeeseeeeeees 41 Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 SIT sessaidihivigiicittllicarmdiniitehgelaiidthahsiintarinichtntpininahitinecaenis 18, 19 Oregon v. Hitchcock, 202 U.S. 60 (1906) .........ccccccccccceeeeees 15 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824) .........cc.ccsccseresssscssessseosees 16 Pennhurst State Sch. & Hosp. v. Halderman, SP SII ‘dcithndicahiniiadsenasaieipupenntctinnninanonitianes 17, 33 Pennsylvania v. New Jersey, Ee NR, PE I Cs aN aa 23 Pennsylvania v. Union Gas Co., REE RI er ee 42, 43 Primate Protection League v. Administrators of Tulane Educational Fund, A RE RSS? Cn Ca 40, 44 Principality of Monaco v. Mississippi, FEI EL A 11,15 Printz v. United States, 521 U.S. 898 (1997) ..........cccccccceees 30 Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ........... 6, 7, 38 Vili TABLE OF AUTHORITIES—Continued Page(s) Rainwater v. United States, SOG ULE, FED wcenswvitiestreneatinviniesinemnavenin 1, 25 Ruddy v. Rossi, 248 U.S. 104 (1918) .........cccccccssseeeereeeennees 25 Salinas v. United States, 522 U.S. 52 (1997) .......ccccccceerseees 4) Seminole Tribe of Florida v. Florida, SET TBR GORD tielilcteceninidibinsastetiebenesinnsimnviitia 11, 42 Shea v. Vialpando, 416 U.S. 251 (1974) ...ccccccccecseseeeeneenenes 45 Sims v. United States, 359 U.S. 108 (1959) ..........ccecceeeeeeees 45 South Carolina v. Baker, 485 U.S. 505 (1988) .........:ccceeee: 37 South Dakota v. North Carolina, RSE CEE, SD necectnecesonstshvnicniinctinnnendsceccnntenatianeiie 19 Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803) ...........ccccceee 30 Swint v. Chambers County Comm'n, ee | a ree 9, 37, 38 The Gray Jacket, 72 U.S. (5 Wall.) 370 (1866) ...........000+6 35 Thornburg v. Gingles, 478 U.S. 30 (1986) ......:cccceeeeeeeeneees 48 United States ex rel. Fine v. Chevron, U.S.A., Inc., 39 F.3d 957 (9th Cir. 1994), vacated on other grounds, 72 F.3d 740 (9th Cir. 1995) .......c0000200 12 United States ex rel. Foulds v. Texas Tech University, 171 F.3d 279, petition for cert. filed, 68 U.S.L.W. 3138 (Aug. 23, 1999) ......cccccccceeeeeees 12 United States ex rel. Marcus v. Hess, 317 U.S. SOF CRDGDD evinierssvsincatinnsuininmnintiitelentinaianipinensmmats passim United States ex rel. Milam v. University of Texas, 961 F.2d 46 (4th Cir. 1992) ......ccccccrsceseseeeeeeernenes 12 United States ex rel. Rodgers v. Arkansas, 154 F.3d 865 (8th Cir. 1998), cert. dismissed, BOS Be. CR BOR CRD cetrcctscescncsensnsinviannenbeanseretnicoeencosin 12 United States ex rel. Stevens v. State of Vermont Agency of Natural Resources, 162 F.3d 195 (38 Cae BODE. ccsstnivcocntithisscerdccsshanicensbecniinnennitiionnniaitin 12 United States v. Bornstein, 423 U.S. 303 (1976) ........00++ 1,48 > ix TABLE OF AUTHORITIES—Continued Page(s) United States v. California, 332 U.S. 19 (1947) .....ccccecce 43 United States v. Chemical Found., Inc., a C iiacieidicidtn Lasiticnpsintbbesshniiaadabventencesunaoves 36 United States v. Cooper Corp., 312 U.S. 600 SRIDED Wintatindiiichecacertnibindsacdincetabinbitiahineiaatvesapbebebth 40, 41, 44 United States v. Curtiss-Wright Export Corp., a: A OEE Unlchamadetbesttiincddapsaicnniesibeaisapeaneuiatate 30 United States v. Gonzales, 520 U.S. 1 (1997) .....cccccccceeceeees 45 United States v. Gratiot, 39 U.S. (14 Pet.) 526 SENET vevietidchasenelwilidhida hiceimsbinsciosthduidhiiadibadiiembsheidghneceesotoves 26 United States v. Halper, 490 U.S. 435 (1989) ........cccccccceeee 48 United States v. McNinch, 356 U.S. 595 (1958) .......ccccccccees l United States v. Mezzanatto, DEE TO fi dl taicicsnisncegsninthcoemioniuatsidbineeseniaonied 36 United States v. Michigan, 190 U.S. 379 (1903) ..........0006 15 United States v. Minnesota, I i si ese eee 22 United States v. Mississippi, REE SEIT ERE ee Oe ON EIT 15 United States v. National Treasury Emp. Union, I i ns 39 United States v. Neifert-White Co., 390 U.S. 228 III ihc sccaisdibsinsenlblalaitacihaaieidiagihaniabatntistisan tes ddiabapetianys 21, 47 United States v. Peters, 3 U.S. (3 Dallas) 121 SETI cshcicceensediituetthditeesinepsnanndtphatablasheadinidibanpiedanaaiiniens 30, 31 United States v. Rosenwasser, 323 U.S. 360 iL seestonionss 45 United States v. San Jacinto Tin Co., 125 U.S. RRS RSC RIE EN RRR SS Se OO 35 United States v. Texas, 143 U.S. 621 (1892) «0.0.0... 10, 14 United States v. Turkette, 452 U.S. 576 (1981) .....ccccccccceees 45 United States v. X-Citement Video, Inc., 513 TINTED sscnciuith cciitstien cdienhaciahinbbatebbcttatliginescetianareeys 41 x TABLE OF AUTHORITIES—Continued Page(s) Utah Div. of State Lands v. United States, 482 UB. 190 CISC) .ccccccecccecciovsneconinsssesonssevonenpsinicagsceccsntsnece 25 Van Brocklin v. Tennessee, 117 U.S. 151 (1886) ..............: 26 Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987) .....ccccccsseesereerneerensnensensenees 11 West Virginia v. United States, 479 U.S. 305 C1 DBT). siecensrercnccvesceadssiitinnssenessonbisbinesnssnebstectnescaeenees 15, 43 Will v. Michigan Dep't of State Police, 491 U.S. SB CRDEID ov cncrccsercctosersecosecenitensnesmnmnevespeeqocesonsocesonoeseteodie 39 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 C1 BSA) cececccdncossarendsvciecesoveranecotnosbanisagnsscanvensentsaesetetetenss 30 CONSTITUTION U.S. Comat. ant. TV, G3, GB. 2 ....ccccccccessnssesscossecsecses 1, 10, 13, 25 U.S. Comet, Genet. FEE ..ccrvevsccesccssossiscscesnacvetoveseoscnetensespecseees 11 STATUTES AND LEGISLATIVE MATERIALS 2B U.S.C. 8 LDDE ..cercercorererscserersscscosnsscosenseossessesseovenessessonees 38 28 U.S.C. §§ 1292(a)-(B) ..........ccccecscrsssecercrseersecssnsensessnssnsess 38 2B U.S.C. § BOTS cxrcerererverecceseseccessonsveononesciveccsserensessenecseeoanes 38 31 U.S.C. § 3729 68 0g. .......ccssecrccescrscccororersrcesercsonesess 1,2, 44 31 U.S.C.6 STILE) ...0cccccceossscersesescrarscosenosensssssscosenssnsenees 2, 34 32 UG.C. G STROUD) neencensccceorerceccsscesccccorccccensnnsssscsessesosoces 2, 31 31 USC. § STSCI A) «.0.-coreserreccnvescrsvecccccscosscerseveeneess 2, 3, 34 31 U.S.C. § STSOCMA) «...0:00rcreoserscrcossersssccercseversnssesenesnrssrsoees 2 31 UGC. GSTIOEIG) .ncceceseccccscssnerccesnncorecsssecscesorisnnssneessorene 3 31 U.S.C. § STIOLE NA) ..000.0.cccrccscsssccccsccscosenesconseverevssestecnscses 3 31 U.S.C. § ST3EOLD) .......eccnrccccscrscsccseccecrerconcsseseereesenoesensenseness 3 31 U.S.C. § ST3OU) ...0-.c.ccerecressesrcrerceresorenssncsessesosncecssorsoneess 32 31 U.S.C. § ST32D) n.scsecco.cccrccnceccserserosossossserssncensconecessssseoss 47 31 U.S.C. § ST3BB(S) ....0.000.00erccerecrscscerceesssoncsescesnoesasencesss 45, 46 xi TABLE OF AUTHORITIES—Continued Page(s) Fe Re IID ‘stil cichussascnsescctneisieceisd dcbidmmbbidssleaceudss 46 Rg OAR FREE eae ae Sie a 46 Pe ici ies cicicd sineans eden sitinaheeasebos 46 OF Sie te EE iiidinns Ssceicsdecciaitakcennitcnieccccsscnssabbakiondactnsasen 39 Act of July 31, 1789, ch. 5, § 8, 1 Stat. 29 oe 28 Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 55.0.0... 28 Act of March 1, 1790, ch. 2, § 3, 1 Stat. 101 ooo. 28 Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124.0000... 28 Act of July 5, 1790, ch. 25, § 1, 1 Stat. 129 oc 29 Act of July 20, 1790, ch. 29, §§ 1, 4, 1 Stat. 131 00... 28 Act of July 22, 1790, ch. 33, § 3, 1 Stat. 137 occu. 28 Act of Aug. 4, 1790, ch. 35, §§ 55, 69, 1 Stat. 145.0000... 28 Act of Feb. 25, 1791, ch. 10, §§ 8, 9, 1 Stat. 191.00. 28 Act of March 3, 1791, ch. 15, § 44, 1 Stat. 199 oo. 28 Act of March 3, 1791, ch. 8, § 1, 1 Stat. 215 oo... 28 Act of Feb. 20, 1792, ch. 7, § 25, 1 Stat. 232.0000... 29 Act of March 1, 1793, ch. 19, § 12, 1 Stat. 329 oo... 29 Act of June 5, 1794, ch. 45, § 10, 1 Stat. 373.000... 29 Act of June 5, 1794, ch. 48, § 5, 1 Stat. 376.......cccccceceees 29 Act of June 5, 1794, ch. 50, § 3, 1 Stat. 381.00... eee 29 Act of June 5, 1794, ch. 51, § 21, 1 Stat. 384 oo. 29 Act of June 9, 1794, ch. 65, § 12, 1 Stat. 397.000... 29 Fa Se BO, Bt Bi icttbcnsnasicrnctcninesssncsaveaiverevie 29 Act of March 3, 1797, ch. 13, § 3, 1 Stat. 506.00... 29 Act of March 2, 1863, ch. 67, § 1, 12 Stat. 696 ..........ccc 2 Clean Water Act, 33 U.S.C. § 1251 ef Seq. .......cccccccceeseeeseeees 3 Comprehensive Environmental Kesponse, Compensation and Liability Act of 1980, 42 II i 42 Fair Labor Standards Act of 1938, 52 Stat. 1060, codified as amended at 29 U.S.C. § 201 er RS pscaietetntsdensestehndebstnncnbindninibeah eenecinnstinnensancetnbsovevvortnenees 21 False Claims Act, 31 U.S.C. § 3729 ef seg. ..........000000: 1,2,44 xil TABLE OF AUTHORITIES—Continued Page(s) False Claims Amendments Act of 1986, Pub. L. GD-~ GET; BOD Dia, SAG ncceccissncecqecsciscceinintnbsnsiensccesecsoree 44 S. REP. No. 345, 99th Cong., 2d Sess. (1986) .............. passim Safe Drinking Water Act, 42 U.S.C. § BOOT G6 BOG. 101000.ccseccersncsrccesesescosvsnsscseneeseces 3,6 OTHER AUTHORITIES 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN (1972 €01.) .......ccsssersrecscecscssosseserenrenseeeees 27 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (1768).............0:csseceeeeessseeeseerenes 27 JOHN T. BoESE, CIVIL FALSE CLAIMS AND QUI TAR ACTION 3-8 CISIPP wecrcceccotccscreccrcceccvoseccvessesevcssveces 28 Dan D. Pitzer, Comment, Qui Tam: A Comparative Analysis of Its Application in the United States and the British Commonwealth, 7 TEX. INTL L. J. 415 (1972). <.ceccscsasssenseresshitenesuansnsnoqnenaccontansenersteneqscesienesenseoses 28 Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163 (1992) ........ssscssecerrereeereerseeneees 28 Note, The History and Development of Qui Tam, ROTB Werle. UU. Li GY. cciescescsseseiccsccvinnvnsscrsininctovecicts 27-28 BRIEF FOR RESPONDENT CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Eleventh Amendment to the United States Constitution and the relevant provisions of the False Claims Act, 31 U.S.C. § 3729 et seq., are set forth at Pet. App. 91- 125. The Property Clause of the United States Constitution, U.S. Const. art. IV, § 3, cl. 2, provides: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. STATEMENT 1. The False Claims Act “was originally passed in 1863 after disclosure of widespread fraud against the Government during the War Between: the States.” Rainwater v. United States, 356 U.S. 590, 592 (1958); see United States v. Bornstein, 423 U.S. 303, 309 (1976). “Testimony before the Congress painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war.” United States vy. MeNinch, 356 U.S. 595, 599 (1958). In order “to provide protection against those who would ‘cheat the United States,’” United States ex rel. Marcus v. Hess, 317 U.S. 537, 544 (1943) (citation omitted), and “broadly to protect the funds and property of the Government,” Rainwater, 356 U.S. at 592, Congress made it illegal “to present or cause to be pre: ented for payment or approval * * * any claim upon the Government of the United States * * * knowing such claim 2 to be false, fictitious, or fraudulent.” Act of March 2, 1863, ch. 67, § 1, 12 Stat. 696. The Act, which was substantially rewritten, expanded, and enacted afresh in 1986, now makes “any person” who knowingly presents a false or fraudulent claim to the United States “liable to the United States Government for a civil penalty” not exceeding $10,000 “plus 3 times the amount of damages which the Government sustains.” 31 U.S.C. § 3729. As it has in substance since 1863, the Act directs federal prosecutors to “diligently investigate” violations of the Act, and it authorizes them to “bring a civil action * * * against the person” that submitted the false claim. 31 U.S.C. § 3730(a). The Act also provides, as did the original statute, an additional enforcement mechanism in the form of a “qui tam” suit: it authorizes “[a] person [to] bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government.” 31 U.S.C. § 3730(b). A person who brings a qui tam action (called a “relator”) must file his complaint in camera and under seal. The com- plaint and a “written disclos:>” of the facts on which the relator bases his complaint must be served on the Attorney General and on the local United States Attorney. 31 U.S.C. § 3730(b)(2). The complaint, however, may “not be served on the defendant until the court so orders,” usually after it is unsealed. The complaint must remain under seal for at least 60 days—a period that may be extended by leave of the court—while government attorneys investigate the com- plaint’s allegations. By the end of that 60-day period (and any extensions) the Attorney General must inform the district court whether government attorneys will take over the action. Ibid. If government attorneys do take over the case, they “have the primary responsibility for prosecuting the action,” and 3 they may, subject to court approval, dismiss it altogether “notwithstanding the objections of the [relator],” compromise it, Or prosecute it to judgment. Jd. at § 3730(c)(2). If the Attorney General elects not to take over the case, on the other hand, the relator may prosecute the action in the name of the United States—but he must do so at his own expense and may become liable for the defendant’s attorneys fees and expenses if the suit later is found by the court to be frivolous or vexatious. Jd. at §§ 3730(c)(3), 3730(d)(4), 3730(f). Moreover, the Attorney General still retains the right to intervene and litigate the action upon “a showing of good cause.” Jd. at § 3730(c)(3). A portion of any recovery by the United States—whether or not the Attorney General elected to take over the litigation—must be shared with the relator. 2. Respondent Jonathan Stevens commenced this gui tam action against the State of Vermont Agency of Natural Resources (“VANR”) in May 1995. The allegations of the complaint, which “must” be presumed to be true “for the purpose of disposing of the jurisdictional issue[s]” raised by this case, Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 374 (1945); see Ickes v. Fox, 300 U.S. 82, 96 (1937), disclosed that VANR systematically defrauded the United States Government by instructing its employees to prepare documents that falsely certified that those employees had worked on matters funded by certain federal grants administered by the United States Environmental Protection Agency (“EPA”). Pet. App. 6-7. The EPA administers a number of federal grants under the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Safe Drinking Water Act, 42 U.S.C. § 300f et seg. As a recipient of federal funds under those grants, VANR must meet certain reporting requirements, including the submission of time- and-attendance records that reflect the amount of time spent by VANR employees on activities that qualify for federal 4 grant money. Pet. App. 6. Mr. Stevens was employed as an attorney by the Water Supply Division of the Department of Environmental Conservation, an arm of VANR. While Mr. Stevens was employed by VANR, he and his fellow employees were instructed by their superiors to complete time-and-attendance records that falsely reflected that their time was being spent on grant-eligible tasks. Jd. at 6-7. Indeed, employees were told to fill out time-sheets in advance, and to allocate specific proportions of their reported time to particular federal grant codes that were dictated by agency supervisors. Those allocations bore no relation to the tasks actually performed by VANR employees. /d. at 6; see also Relator’s Wnitten Disclosure of Material Evidence and Information at 4 (“Written Disclosure”). The Written Disclosure that Mr. Stevens submitted to the Attorney General in accordance with the Act documented those allegations in detail, including contemporaneous VANR memoranda allocating employee hours to federal grants in advance of any work being performed? The Written Disclosure showed that Mr. Stevens repeatedly had questioned his supervisors’ orders, pointing out that the time ' Because the False Claims Act requires that the Written Disclosure be served on the Attorney General, and because that disclosure forms the basis for her investigation and ultimate decision concerning intervention, Mr. Stevens has lodged copies of the Written Disclosure with the Clerk. 2 In one e-mail exchange, a VANR supervisor instructed an employee to continue using the codes prescribed for federal funding even though, three months into the fiscal year, she no longer had federal responsibilities; the State later reported that 95% of her time during that year had been devoted to those responsibilities. Written Disclosure at Tabs G, H, I. 5 forms he was required to complete required him personally to certify falsely “under the pains and penalties of perjury * * * that the for[e]going report does accurately reflect the time worked * * *.” See Written Disclosure, at Tab L. Mr. Stevens also alerted his supervisors to the criminal penalties prescribed by state law for making false statements to governmental bodies, and reminded his supervisors that, as an attorney, he was required by the Code of Professional Responsibility to take a “proactive role” in urging a client to rectify an ongoing fraud and, if necessary, to reveal the fraud to the affected person or tribunal. /d. at Tab O. Mr. Stevens additionally sought a meeting, and did meet, with the Secretary of VANR in order to apprise him of the agency’s improper conduct. /d. at 5. Mr. Stevens’ efforts proved wholly unavailing. The General Counsel of VANR warned Mr. Stevens that he “should choose [his] battles more carefully.” Written Disclosure at 6. Other employees who questioned VANR’s practices “were told that if they wanted to keep their jobs they should not raise this issue.” /d. at 4. In the end, VANR simply “failed to change its practices or make any effort to account for the discrepancies.” Jd. at 7. In fact, VANR “never has maintained any accounting procedure to verify that pre-allocated employee hours assigned to federal grant funding sourcing codes were actually worked,” and no ad- justments have ever been made “to account for, or even identify, discrepancies” between hours worked and the arbitrary pre-allocated figures. JA 38 (9 33-34). 3. The Attorney General investigated the allegations of the complaint and its supporting materials from May 1995 until June 1996. Pet. App. 7. The Attorney General then informed the court that federal prosecutors would not take over the action, but she did not intervene, as was her statutory right, to terminate the suit. Instead, she expressly reserved 6 her statutory right to intervene against the State at a later time as the case proceeded. /d. She also requested to be served with copies of all pleadings filed in the case. /d. After the complaint was unsealed and served upon Vermont, the State moved to dismiss it. JA 7. Vermont con- tended that States and their instrumentalities are not persons under the Act and that, in any event, this suit is barred by the Eleventh Amendment. Pet. App. 8. The United States, ap- pearing as amicus curiae, opposed the State’s motion, noting that despite the Attorney General’s election not to take over the litigation, “the United States remains the real party in interest in this * * * gui tam action * * *.” U.S. Memo- randum In Opposition to Defendant’s Motion To Dismiss at 1; see also id. at 7 (“the United States remains the real party in interest and, ultimately, the primary beneficiary should the relator’s efforts prove successful.” The district court denied Vermont’s motion to dismiss. Pet. App. 86-87. The court first rejected Vermont’s Eleventh Amendment claim, agreeing with the Attorney General’s position that “the Eleventh Amendment does not bar suits such as the instant one because the United States, which has the ability to sue a state, is the real party in interest and ultimately the primary beneficiary of a successful gui tam action.” Jd. at 86. The court also rejected Vermont’s claims that States are not “persons” under the Act, noting that States can be “persons” when they appear as plaintiffs under the Act and “identical words used in different parts of the same act should be afforded the same meaning.” /d. at 87 (citing Commissioner v. Lundy, 516 U.S. 235, 250 (1996)). 4. Vermont took an interlocutory appeal from the district court’s Eleventh Amendment ruling, as permitted by Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). The United States intervened to 7 defend the district court’s decision. Pet. App. 9. The court of appeals affirmed. Pet. App. 1-30. In rejecting Vermont’s claim of Eleventh Amendment immunity, the court of appeals found dispositive the nature of “[t]he interests to be vindicated, in combination with the government’s ability to control the conduct and duration of the gui tam suit.” Pet. App. 16. In particular, the court agreed with the district court’s conclusion that “[t]he real party in interest in a gui tam suit is the United States.” The court reasoned: All of the acts that make a person liable under § 3729(a) focus on the use of fraud to secure payment from the government. It is the government that has been injured by the presentation of such claims; it is in the government’s name that the action must be brought; it is the government’s injury that provides the measure for the damages that are to be trebled; and it is the government that must receive the lion’s share * * * of any recovery. Id. The court also emphasized that “the government has the right to control the action” by intervening, has “the right to be kept abreast of discovery” even if it does not intervene, and “has both the right to prevent a dismissal sought by the qui tam plaintiff and the right to cause the action to be dis- the qui tam plaintiff s desire that it continue.” Jd. at 17. Those factors established, the court found, that a qui tam suit “is in essence a suit by the United States and hence is not barred by the Eleventh Amendment” (Pet. App. 18), because “{ajs against the United States * * * the States have no sovereign immunity.” Jd. at 15. The court rejected the con- tention that a contrary conclusion was required by Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991), which held 8 that the Eleventh Amendment bars Indian tribes from directly suing States on claims that the United States might have brought against those States on the tribes’ behalf. The court found it “plain{]” that “in those circumstances * * * the injury to be remedied was one to the tribes, not to the federal government, and the cause of action did not belong to the government.” Pet. App. 18. Vermont also sought interlocutory review of the district court’s conclusion that States are “persons” under the Act. The court of appeals purported to exercise “pendent appellate jurisdiction” over that statutory question and affirmed. Pet. App. 19. The court first rejected Vermont’s contention that a “plain statement” of Congress’ intent to render States liable is required here, explaining that “(t]he Act does not intrude into any area of traditional state power” since the “[t]he goal of the statute is simply to remedy and deter procurement of fed- eral funds by means of fraud.” /d. at 20-21. The court then concluded that “[ujnder the usual standards” of construction, Congress plainly intended for the Act to authorize suits against States. Jd. at 21. The court of appeals found significant the fact that the term “person” is “used to categorize both those who may sue and those who may be sued, whether by the government itself or by a qui tam plaintiff.” Pet. App. 21. The court noted that States have brought suit under the Act as qui tam plaintiffs, and that the 1986 legislation reinforced a State’s ability to do so by permitting joinder, in an action under the Act, of related state-law claims seeking money for the benefit of a State. Jd. at 22-23. The court concluded that States are plainly “persons” under the Act, because courts “normally infer that in using the same word in more than one section of a statute—or indeed twice within the same section, as in sub- sections (a) and (b) of § 3730—Congress meant the word to have the same meaning.” Jd. at 23-24. 9 The court of appeals also noted that its interpretation of the term “person” is supported by the Senate Report that accompanied the 1986 law. Pet. App. 25-27. That report expressly stated that the term “‘person’ is used in its broad sense to include * * * States and political subdivisions thereof.” Jd. at 27-28 (quoting S. REP. No. 345, 99th Cong., 2d Sess. 8 (1986)). District Judge Weinstein, sitting by designation, dissented. Pet. App. 31-85. SUMMARY OF ARGUMENT Vermont presents two questions for review: whether States are “persons” under the Act and whether the States’ sovereign immunity precludes gui tam suits against States. Although the court of appeals addressed both issues, its jurisdiction in this interlocutory case was limited to the question of immunity. The court of appeals’ assertion of “pendent appellate jurisdiction” over Vermont’s statutory claim cannot be squared with Swint v. Chambers County Comm'n, 514 U.S. 35 (1995), which precludes appellate consideration of issues not independently appealable or certified as such by the district court. Because only the Eleventh Amendment ruling was properly the subject of interlocutory review, Mr. Stevens will address that claim before addressing the State’s statutory defense. I. This Court has consistently held that questions of sovereign immunity must be resolved by evaluating whether a State or the United States is the real party in interest. Because suits under the False Claims Act vindicate the sovereign proprietary interests of the United States, the United States is indisputably the real party in interest in such suits. Few principles are better established in the field of sovereign immunity than that States have no Eleventh Amendment immunity as against the United States. See 10 United States v. Texas, 143 U.S. 621 (1892). Vermont’s sovereign immunity defense, therefore, must fail. Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991), and Alden v. Maine, 119 S. Ct. 2240 (1999), do not establish, as Vermont contends, that the United States can be a party to litigation only_when Executive Branch officials personally conduct the litigation. Those cases instead ad- dress an issue different from that presented here, because they involved suits by private individuals seeking to enforce their own personal federal rights. What is at issue in this case, by contrast, is whether Congress may authorize gui tam litigation against States when the United States’ own property rights are at issue. Neither Blatchford nor Alden speaks to that question. While Executive Branch participation may be necessary to demonstrate the sovereign’s interest in suits that appear to redress purely private grievances, it is not necessary in suits under the Act. Every suit under the False Claims Act—be it initiated by the Attorney General or by a gui tam relator— vindicates the proprietary interest of the United States. Because Congress has exceptionally broad authority in re- spect of those interests (see U.S. Const. art. IV, §3, cl. 2), it was assuredly within its constitutional authority to vindicate those interests through the gui tam mechanism, a form of action that was well known to the Framers. And in any event, even if Blatchford and Alden could plausibly be read to require some level of control by Executive Branch officials, gui tam litigation under the Act would meet any test that this Court might reasonably fashion in that regard. Il. Were the Court to reach Vermont’s statutory argument, it would have to reject Vermont’s interpretation of the Act. The words “any person” in the Act plainly encom- pass States of the Union, a conclusion buttressed by the civil investigative demand provisions of the Act, which unam- 11 biguously define States as “persons,” and by the undisputed proposition that States are “persons” that can initiate gui tam proceedings under the Act as relators. Vermont errs in contending that Congress need have made a “plain state- ment” of its intent to subject States to suit, because the Act is not ambiguous. Accordingly, should the Court reach Vermont’s statutory claim, it must affirm the judgment of the court of appeals on this ground as well. ARGUMENT I. THE UNITED STATES MAY USE THE “QUI TAM” VEHICLE TO SUE A STATE OF THE UNION FOR FRAUDULENTLY OBTAINING FEDERAL PROPERTY The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Although by its literal terms the amendment “would appear to restrict only the Article III diversity jurisdiction of the federal courts,” Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996), this Court has concluded that the text of the amendment is not controlling. Thus, the Court has held that the amendment shields States from suits by their own citizens, Hans v. Louisiana, 134 U.S. 1 (1890), by foreign countries, Principality of Monaco v. Mississippi, 292 U.S. 313 (1934), and by Indian tribes, Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991). Similarly, the Court has ruled that the amendment applies in federal question cases, see Hans, supra, and—notwithstanding the textual limitation to “suits in law or equity”—to certain suits in admiralty as well. See Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987); Ex parte New York, No. 1,256 U.S. 490 (1921). 12 Because it is now settled that the Eleventh Amendment embodies general principles of sovereign immunity that ante- date the Constitution, rather than any particular rule dis- cernable from its text (Alden v. Maine, 119 S. Ct. 2240, 2250-53 (1999)), it is surprising that so much of Vermont’s argument is predicated on the purely text-based argument that gui tam suits are “commenced” or “prosecuted” “by” private individuals. E.g., Vt. Br. 29, 30, 43, 45; see also Bnef of the National Governors’ Association ef al. as Amici Curiae 27. In fact, Vermont’s entire argument proceeds as though the Second Circuit—whose conclusion is in accord with the views of all but one court of appeals to consider the constitutional question presented here—had invented the real-party-in-interest inquiry out of whole cloth.* According to Vermont, the Second Circuit’s analysis “is flatly incon- sistent with the larger body of this Court’s sovereign immu- nity decisions” (Vt. Br. 47), because under an inflexible “rule” (id. at 34) purportedly adopted by this Court in Blatch- > Of the five courts of appeals that have ruled on the question, only the Fifth Circuit has held that the Eleventh Amendment pre- cludes gui tam suits brought against States under the False Claims Act. See United States ex rel. Foulds v. Texas Tech University, 171 F.3d 279, petition for cert. filed, 68 U.S.L.W. 3138 (Aug. 23, 1999). The majority view is that the Eleventh Amendment has no bearing on such suits because the United States is the real party in interest. See United States ex rel. Rodgers v. Arkansas, 154 F.3d 865 (8th Cir. 1998), cert. dismissed, 119 S. Ct. 2387 (1999); United Staies ex rel. Stevens v. State of Vermont Agency of Natural Resources, 162 F.3d 195 (2d Cir. 1998) (decision below); United States ex rel. Fine v. Chevron, U.S.A., Inc., 39 F.3d 957 (9th Cir. 1994), vacated on other grounds, 72 F.3d 740 (9th Cir. 1995); United States ex rel. Milam v. University of Texas, 961 F.2d 46 (4th Cir. 1992). 13 ford and reaffirmed in Alden, the question of sovereign im- munity turns on “who is responsible for and in control of the suit—not [on] who benefits from the suit.” Jd. at 47, 31-32. It is Vermont’s position, however, that cannot be reconciled with this Court’s sovereign immunity cases. In a long line of authority—which Vermont does not even cite, much less attempt to distinguish—this Court has consistently held that questions of immunity must be resolved by inquiring whether a State or the United States “is the real party in interest.” E£.g., Kansas v. United States, 204 U.S. 331, 341 (1907). Far from stating a “rule” to the contrary, Blatchford is one of several cases in which this Court has enforced the real-party-in-interest inquiry by requiring proof that some sovereign or quasi-sovereign interest is actually at stake when a suit appears solely to benefit private persons. That concern has no relevance here, because suits under the False Claims Act plainly vindicate the sovereign proprietary interests of the United States—interests over which Congress has plenary authority and which no State is empowered to hinder. See U.S. Const. art. IV, §3, cl. 2. Nothing in the Eleventh Amendment prevents Congress from vindicating those sovereign interests against a State through a qui tam suit, a form of action that was well known to the Framers of the Constitution, especially in light of the numerous provisions of the Act that ensure that modern qui tam litigation is subject to Executive Branch control. Indeed, even if Vermont were correct that “control” rather than real- party status determines the sovereign immunity issue, the Attorney General’s nght to control litigation under the Act would more than suffice to meet any such requirement. 14 A. States Of The Union Have No Eleventh Amendment Immunity Against The United States 1. This Court first explicitly addressed whether the United States may sue a State in United States v. Texas, 143 U.S. 621 (1892), a dispute over the ownership of property—a tract of land—claimed by both sovereigns. Congress, by stat- ute, had directed the Attorney General to commence suit on behalf of the United States “in order that the rightful title to said land may be finally determined.” Jd. at 622 (Statement of the Case, quoting Act of May 2, 1890, ch. 182, § 25, 26 Stat. 81, 92). Texas demurred, asserting that the United States did not have the constitutional authority to bring suit against a State in federal court. Indeed, in an argument that recalls the “cooperative federalism” contentions advanced by Vermont here (e.g., Vt. Br. 34-35), “Texas insist[ed] that no such jurisdiction has been conferred [by the Constitution], and that the only mode in which the * * * dispute [could] be peaceably setiled [was] by agreement, in some form, between the United States and that State.” 143 U.S. at 641. This Court decisively rejected Texas’ claim. The Court was unwilling to presume that the Framers “overlooked the possibility that controversies, capable of judicial solution, might arise between the United States and some of the States,” especially since the Constitution expressly makes other inter-sovereign controversies cognizable in federal court. Texas, 143 U.S. at 644-45. As the Court put it, “the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more States of the Union,” could not have “intended to exempt a State altogether from suit by the General Govern- ment.” Jbid. While acknowledging the limitations placed by the Eleventh Amendment on the jurisdiction of the federal courts (id. at 645-46), the Court emphasized that the Consti- 15 tution necessarily makes States amenable to “the suit of the government established for the common and equal benefit of the people of all the States.” Jd. at 646. 2. As this Court has observed, Texas established that the United States may sue a State of the Union “without the con- sent of the latter. While that jurisdiction is not conferred by the Constitution in express words, it is inherent in the consti- tutional plan.” Principality of Monaco vy. Mississippi, 292 U.S. 313, 329 (1934); see also United States v. Michigan, 190 U.S. 379, 396 (1903). And since Texas, this Court has repeatedly reaffirmed that “nothing” in the Eleventh Amend- ment “or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State’s being sued by the United States.” United States v. Mississippi, 380 U.S. 128, 140 (1965). To the contrary, “[t]he United States in the past has in many cases been allowed to file suits in this and other courts against States * * * with or without specific authorization from Congress.” Jbid. Accordingly, it is now established, and it cannot reasonably be disputed by Vermont here, that “States have no sovereign immunity as against the Federal Government.” West Virginia v. United States, 479 U.S. 305, 311 (1987). B. This Court Has Applied A Real-Party-In- Interest Test To Determine Whether The United States Is A Party to Litigation Although one would not know it from Vermont’s brief, this Court has long held that “(t]he question whether the United States is a party to a controversy is not determined by the merely nominal party on the record but by the question of the effect of the judgment or decree that can be entered.” Kansas, 204 U.S. at 341 (emphasis added); accord Dugan v. Rank, 372 U.S. 609, 620-21 (1963); Oregon v. Hitchcock, 202 U.S. 60, 69-70 (1906). The question is determined, in other words, not by the executive-officer “rule” advocated by 16 Vermont, but by asking whether “the United States [is] the real party in interest.” Naganab v. Hitchcock, 202 U.S. 473, 476 (1906). The real-party-in-interest doctrine was originally developed by this Court in a series of Eleventh Amendment cases involving suits against individuals who claimed sover- eign immunity on the basis of their official duties on behalf of a State, and soon was extended to suits by one State against a sister State—in which the Court dismissed suits brought on behalf of States by their respective attorneys gen- eral after concluding that the putative plaintiffs were not the real parties in interest. In light of the “correlation between sovereign immunity principles applicable to States and the Federal Government,” California v. Deep Sea Research, Inc., 523 U.S. 491, 506-07 (1998), this Court long ago held that the same real-party-in-interest principles “must apply to the United States.” Kansas, 204 U.S. at 341; Minnesota v. Hitchcock, 185 U.S. 373, 387 (1902). Those Eleventh Amendment cases, therefore, control the inquiry here. 1. The real-party-in-interest rule was not always the touchstone for this Court’s sovereign immunity juris- prudence. In Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824), for example, this Court rejected an Eleventh Amendment defense to a suit against State officials, announcing “as a rule, which admits of no exception, that in all cases where jurisdiction depends on a party, it is the party named in the record.” Jd. at 857-58. The Court generally followed Osborn’s party-of-record rule well into the 19th century, repeatedly rejecting the Eleventh Amendment pleas of state officers who had been sued in their official capacities. See, e.g., Davis v. Gray, 83 U.S. (16 Wall.) 203, 220 (1872). In Jn re Ayers, 123 U.S. 443, 487-508 (1887), however, the Court discarded Osborn altogether and held that a suit against state officers is a suit against the State for pur- 17 poses of the Eleventh Amendment when the relief prayed for would constitute performance of one of the State’s obliga- tions. See Ex parte Young, 209 U.S. 123, 150-51 (1908). And “that construction of the Amendment has since been followed.” Missouri, Kansas & Texas Ry. Co. v. Missouri R.R. & Warehouse Comm'ars, 183 U.S. 53, 59 (1901). The modern rule is that “what is to be deemed a suit against a State * * * is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record.” Ex parte New York, No. 1, 256 U.S. at 500 (emphasis supplied). Thus, “when the action is in essence one for the recovery of money from the state, the state is the real, sub- stantial party in interest and is entitled to invoke its sovereign immunity” even if private parties, who obviously are not themselves the State, are the named defendants. Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945). In other words, “the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 107 (1984) (emphasis in original); accord Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269-70 (1997). 2. This Court’s cases make clear that the same real- party-in-interest inquiry is also required when a State seeks to proceed as a plaintiff in a suit against a sister State—the situation most analogous to suits, such as this one, in which the United States seeks redress of its claims against one of the States. Federal courts may exercise jurisdiction in such State-against-State cases only if the suit is brought to further the plaintiff State’s own substantial interests, and is not merely “a controversy in the vindication of grievances of particular individuals.” Louisiana v. Texas, 176 U.S. 1, 16 (1900). 18 That rule is exemplified by the leading case of New Hampshire v. Louisiana, 108 U.S. 76 (1883). The States of New Hampshire and New York had enacted statutes permitting their citizens to assign to their respective States any past due bonds issued by another State, and to deliver such bonds, together with the costs of suit, to the States’ attorneys general for collection. /d. at 76-79. In reliance on their respective State statutes, the attorneys general of New Hampshire and New York brought original actions in this Court seeking to collect on past-due bonds issued by the State of Louisiana. Although each cause was ostensibly commenced and prosecuted in the name of a State by its attorney general (108 U.S. at 78, 81)}—and thus undoubtedly met the executive- officer “rule” that Vermont urges in this case as the true test for sovereign immunity questions—this Court dismissed both suits. The Court was satisfied that the suits “were in legal effect commenced, and [were being] prosecuted, solely by the owners of the bonds and coupons.” Jd. at 89 (emphasis added). The Court emphasized that the bond owners paid the expenses of the suit, had the authority to compromise it, “and if any money is ever collected, it must be paid to [them].” Ibid. Because it was plain from those facts “that both the State and the attorney-general are only nominal actors in the proceeding,” ibid., the suit was barred by the Eleventh Amendment. See Missouri v. Illinois & Sanitary Dist. of Chicago, 180 U.S. 208, 231 (1901) (reaffirming reasoning of New Hampshire). As the Court later noted, “the effort * * * to use the name of the complainant States in order to evade the application of the Eleventh Amendment” failed because “the State was not seeking a recovery in its own interest, as distinguished from the rights and interests of the individuals who were the real beneficiaries.” Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 392-93 (1938). 19 In South Dakota v. North Carolina, 192 U.S. 286 (1904), by contrast, private holders of certain North Carolina bonds—who concededly were barred by the Eleventh Amendment from suing to collect the debt—donated a number of the bonds to South Dakota, which then brought an original action to recover on them. /d. at 310. This Court rejected North Carolina’s Eleventh Amendment defense, explaining that the bonds were “not held by the State as representative of individual owners, as in [Nev Hampshire}, for they were given outright and absolutely to the State.” South Dakota, 192 U.S. at 310. Unlike the cases framed by New Hampshire and New York, “[tJhe title of South Dakota [was] as perfect as though it had received the[] bonds directly from North Carolina.” Jd. at 312. Because “the clear import of the decisions of this court * * * [was] in favor of its juris- diction over an action brought by one State against another to enforce a property right,” id. at 318, the Court concluded that South Dakota was the real party in interest. The Court over- ruled North Carolina’s Eleventh Amendment defense, in other words, because “[t]he case was * * * one ‘directly af- fecting the property rights and interests of a State.” Oklahoma ex rel. Johnson, 304 U.S. at 393 (quoting South Dakota, 192 U.S. at 314, 318). * In Missouri, Kansas & Texas Railway Co. v. Missouri Railroad and Warehouse Commn'rs, supra, the Court examined whether a suit brought by individuals—certain railroad commis- sioners—should be characterized, for purposes of removal juris- diction, as a suit by the State of Missouri. The Court decided that issue by relying on its Eleventh Amendment real-party precedents, explaining that “it may be fairly held that the State is such a real party” when the relief would inure to the State’s benefit “and * * * the judgment or decree, if for the plaintiff, will effectively operate” 20 3. Vermont does not address this Court’s cases estab- lishing that questions of sovereign immunity—whether the party defendant is entitled to immunity or whether the party plaintiff is a sovereign who may sue despite that immunity— turn on real-party-in-interest status, and must therefore be decided on the basis of “the essential nature and effect of the proceeding.” Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 374 (1945). Vermont contends instead that Blatch- ford and Alden adopted a “rule” that the United States is a party only when a case is actively prosecuted by Executive Branch officials. E.g., Vt. Br. 32, 34. Leaving aside the fact that the language on which Vermont relies was unnecessary to the judgment in each of those cases, and thus scarcely could be taken to promulgate a “rule” of any sort, see, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379 (1994), both Blatchford and Alden in fact reflect the tradi- tional understanding that sovereign immunity questions turn on real, rather than nominal, parties. Thus, neither case sup- ports Vermont’s position here. In both Blatchford and Alden individuals attempted to sue a State in order to assert their own rights, rather than any rights of the United States as a sovereign. In Blatchford, Indian tribes sued State officials to recover money that the tribes allegedly were owed under a state revenue-sharing stat- ute. Alden was a suit against the State by a group of the State’s employees, who sought compensatory and liquidated [Footnote continued from previous page] in the State’s favor. 183 U.S. at 59. Under that test, the Court concluded, the suit was not one by the State of Missouri, because it was “not an action to recover any money for the State” and “[i]ts results [would] not enure to the benefit of the State as a State in any degree.” Ibid. 21 damages for the State’s alleged violation of their rights under the overtime provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, codified as amended at 29 U.S.C. § 201 et seq. Not surprisingly, the Court’s rejection of each of those suits emphasized the fundamental character of the case as involving the vindication of purely private grievances. Thus, Blatchford pointed out that even if the plan of the convention contemplated that the United States would have the power to sue States “for the benefit of private parties,” it would not follow that those parties could sue a State them- selves. Blatchford, 501 U.S. at 785 (“even consent to suit by the United States for a particular person’s benefit is not con- sent to suit by that person himself”). Similarly, in Alden, the Court noted that, unlike suits brought by the employees themselves pursuant to a “broad delegation” by Congress of authority to sue nonconsenting States, “[s]uits brought by the United States itself require the exercise of political responsib- ility for each suit prosecuted against a State.” 119 S. Ct. at 2267. In other words, “(t]he difference between a suit by the United States on behalf of the employees and a suit by the employees implicates a rule that the National Government must itself deem the case of sufficient importance to take action against the State.” /d. at 2269 (emphasis added). Because both Slatchford and Alden addressed only the United States’ authority to vindicate the interests of private parties through litigation against States, “(t]he language in [those] opinion{s] upon which [Vermont] relies cannot be taken as a decision upon a point which the facts of th[ose] case[s] did not present” (United States v. Neifert-White Co., 390 U.S. 228, 231 (1968))}—i.e., whether the United States may recover damages from States that fraudulently obtain federal property only if the government's claim is personally and actively prosecuted by Executive Branch officials. In fact, the real-party-in-interest authorities that Vermont omits 22 from its brief fully explain the Court’s imsistence on Executive Branch involvement when litigation is brought by the United States for the apparent benefit of private parties. That involvement, in furtherance of legislatively declared federal policies, provides a necessary assurance that the interests of the United States are actually at stake in litigation that otherwise would be suspect as purely private under New Hampshire. > The Court resolved a variant of that issue in United States v. Minnesota, 270 U.S. 181 (1926), a case that Blatchford distin- guished. See 501 U.S. at 783. In Minnesota, federal officials brought suit against Minnesota, in the name of the United States, to enforce the rights of Indian tribes to certain land. It was alleged that federal land officers had issued land patents to the State un- lawfully, in disregard of the applicable statute and of tribal treaty rights. Minnesota, 270 U.S. at 192-93. The State defended on the ground that a suit by individual Indians would violate the Eleventh Amendment (id. at 194-95), and “that the United States [was] only a nominal party—a mere conduit through which the Indians are asserting their private rights.” Jd. at 193. Although this Court readily “conceded” that it could not entertain the suit “if the Indians [were] the real parties in interest and the United States only a nominal party,” ibid. (citing, inter alia, New Hampshire and Hans), it nonetheless concluded that the United States “ha[d] a real and direct interest” in the controversy because it had a “sovereign” interest in fulfilling its treaty and other obligations. Jd. at 194. As the Court noted, it is a “duty” of government to fulfill “an obliga- tion incurred by it * * * which personal litigation could not remedy.” Jd. at 195. In other words, the suit’s obvious benefit to private parties notwithstanding, the suit was not barred by New Hampshire because the circumstances indicated that the govern- ment was in fact pursuing its own, sovereign policy objectives. 23 Alden and Blatchford belong to the class of cases in which this Court has recognized that the United States (and the States) may properly engage in litigation that appears to benefit identifiable private parties when such litigation serves larger governmental goals. See North Dakota v. Minnesota, 263 U.S. 365, 375-76 (1923) (notwithstanding New Hampshire, one State can sue another “to protect the general comfort, health or property nights of its inhabitants”). Such suits—some of which this Court has analyzed under the rubric of “parens patriae”—are permissible when the gov- ernment “is not merely litigating as a volunteer the personal claims of its citizens” but instead establishes that “sovereign Or quasi-sovereign interests are implicated.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976) (per curiam); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-01 (1982). Although “neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract,” Alfred L. Snapp & Son, 458 U.S. at 607, the Court over time has emphasized such considerations as the subject matter of the suit (e.g., general health and well- being of the citizenry) and the government’s ability “to address [the asserted injury] through its [own] sovereign law- making powers.” Jd. at607. — Examining whether Executive Branch officials take affirmative steps to prosecute a suit that primarily appears to benefit private parties, as was suggested in Blatchford and Alden, is best understood as a way of assuring that the United States is a real party in interest in such cases, and of fore- closing suits that merely “redress private grievances.” Pennsylvania, 426 U.S. at 665. Indeed, that is the clear im- plication of Alden, which expressly stressed the need to be sure that the interests of the Nation are truly implicated when a suit benefits particular employees. Alden, 119 S. Ct. at 2269. When the only apparent injury was suffered by a private party, and the recovery will inure solely to him, ST See 24 Executive Branch participation provides a basis for con- cluding that federal interests—such as generalized deterrence or securing favorable interpretations of federal statutes for programmatic reasons—are actually at stake in the litigation. That need to make sure that the interests to be vindicated in the suit are indeed sovereign or quasi-sovereign has little bearing in cases like this one, which involves a cause of action that manifestly belongs to the United States. Because this case, unlike A/den and Blatchford, inherently implicates the United States’ property interests, Vermont’s nearly com- plete reliance on those cases is entirely misplaced. C. The United States Is The Real Party In Interest In Qui Tam Suits Under The Act The court of appeals correctly determined that the United States is the real party in interest in gui tam suits brought under the Act, because such suits plainly redress injuries to the property rights of the United States. It is particularly appropriate to conclude that Congress may vindicate those interests through gui tam suits, because similar informer statutes were frequently enacted by the early congresses. 1. While contesting (albeit erroneously) the relevance of the inquiry, Vermont scarcely disputes that the United States is the real party in interest in litigation brought under the Act, nor could it. Under the plain terms of the Act, suit must be brought in the name of the government, and the essence of the case is the defendant’s fraudulent procurement of govern- ment property—an injury to the United States Treasury that the government undoubtedly is entitled to remedy by legal action. That injury to the fisc provides the measure for any damages that may be assessed, and, when recovered, the bulk of those damages must be paid over to the federal treasury. Indeed, as the court of appeals observed, “if there has been no injury to the United States, the gui tam plaintiff cannot 25 recover.” Pet. App. 17. And, of course, the United States may not seek a “dual recovery on the same claim or claims”—because the United States is the real party in interest, “if the Government declines to intervene in a gui tam action, it is estopped from pursuing the same action administratively or in a separate judicial action.” S. REp. 345, at 27; see In re Schimmels, 127 F.3d 875, 881-84 (9th Cir. 1997) (government is bound by prior adjudication against relator). Vermont darkly suggests that Congress might use gui tam remedies broadly to circumvent recent rulings by this Court that deny Congress the power to abrogate a State’s immunity under Article I of the Constitution. Vt. Br. 32-33. But that alarmist rhetoric is unjustifiable and misleading: what is at issue here is whether Congress may authorize gui tam litiga- tion against States when the United States is the real party in interest, not whether Congress may invoke the gui tam vehi- cle to permit the vindication of purely private grievances that it might make actionable under Article I. Indeed, Vermont’s arguments overlook the fact that the False Claims Act was enacted “broadly to protect the funds and property of the Government” (Rainwater, 356 U.S. at 592), and thus is based on the Property Clause of Article IV of the Constitution, U.S. Const. art. IV, § 3, cl. 2, rather than solely on Article I. The Property Clause gives Congress the “power to dis- pose of and make all needful Rules and Regulations re- specting * * * Property belonging to the United States.” It goes on expressly to provide that “nothing” in the original Constitution “shall be so construed as to Prejudice any Claims of the United States * * *.” U.S. Const. art. IV, § 3, cl. 2. This Court repeatedly has held that Congress’ power to protect the property of the United States is “plenary,” Utah Div. of State Lands v. United States, 482 U.S. 193, 201 (1987); Ruddy v. Rossi, 248 U.S. 104, 106 (1918), and “sub- 26 ject to no limitations.” Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1871). Moreover, because “Congress has the absolute right to prescribe the times, the conditions and the mode of transferring” federal property (id.), it “can prohibit absolutely or fix the terns on which its property may be used.” Light v. United States, 220 U.S. 523, 536 (1911). Neither Vermont nor any other State “can interfere with this right or embarrass its exercise.” Gibson, 80 U.S. (13 Wall.) at 99; Van Brocklin v. Tennessee, 117 U.S. 151, 168 (1886). Thus, the exercise of congressional authority under the Property Clause inherently disallows “apprehension of any encroachments upon state rights.” United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840).° The breadth of Congress’ authority to provide for the pro- tection of federal property, and to vindicate the claims of the United States against those who convert such property or ob- tain it fraudulently, cannot be doubted. Indeed, because the Property Clause expressly forecloses any interpretation of the original Constitution that might prejudice the United States’ . Although the bulk of this Court’s cases concerning the Pro- perty Clause address congressional power over public lands, the Clause by its terms applies to any “other Property belonging to the United States.” As the Court noted in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), “[t]he grant was made in broad terms, and the power of regulation and disposition was not confined to territory * * * so that the power may be applied, as [Justice] Story says, ‘to the due regulation of all other personal and real property rightfully belonging to the United States.’ And so, he adds, ‘it has been constantly understood and acted upon.’” /d. at 331 (quoting STORY ON THE CONSTITUTION §§ 1325, 1326); see also Gratiot, 39 U.S. (14 Pet.) at 536-37 (Congress’ power over property is “the same” as over lands); Van Brocklin, 117 U.S. at 168 (same). 27 ability to vindicate its “Claims,” it is difficult to see how the Eleventh Amendment can stand as an obstacle to the accomplishment of the means chosen by Congress in the False Claims Act to secure that end. After all, it is now settled that the Eleventh Amendment did not “change” the constitutional plan devised by the Framers, but merely “restore[d] the original constitutional design.” Alden, 119 S. Ct. at 2251. By the express terms of the Constitution, the authority of Congress under Article IV to prescribe the con- ditions under which federal property is available to States— and the terms under which federal “Claims” against States for the misuse of such property will be prosecuted in federal court—are not powers cabined by the text of the Constitution itself, much less by an immunity for States that is implicit in the original constitutional plan. 2. The fact that Congress chose to protect federal pro- perty rights through qui tam litigation supports the appro- priateness of Congress’ exercise of its Article IV power here, because qui tam suits have a long-standing pedigree. “Statutes providing for actions by a common informer, who himself has no interest in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government.” Marvin v. Trout, 199 U.S. 212, 225 (1905); see also United States ex rel. Marcus, 317 U.S. at 541, n.4 (same). Indeed, such qui tam actions are among the oldest forms of action known to the common law. See, e.g., 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 160 (1768); 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 265 (1972 ed.). American colonial legislatures not only adopted English qui tam statutes but also drafted new laws containing qui tam provisions based on the English model, creating a system in early America that was “virtually identical” to the English 28 system. See Note, The History and Development of Qui Tam, 1972 WASH. U.L.Q. 81, 97. Thus, gui tam actions had “entered American law through the general introduction of British statutory law at the time independence was declared.” JOHN T. BOESE, CIVIL FALSE CLAIMS AND QUI TAM ACTIONS 1-8 (1999). Those early American statutes adhered to Black- stone’s formulation, generally giving half of the recovery to the informer and half to the government. See Dan D. Pitzer, Comment, Qui Tam: A Comparative Analysis of Its Applica- tion in the United States and the British Commonwealth, 7 Tex. INT’L L. J. 415, 417 (1972). In addition to gui tam statutes enacted by state legis- latures, the federal government engaged in the “widespread early congressional creation of the gui tam action.” Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MicH. L. REV. 163, 175 (1992). The First Congress alone enacted at least a dozen statutes that expressly authorized an informer to share in a portion of the authorized recovery.’ Similar provisions were 7 See Act of July 31, 1789, ch. 5, § 8, 1 Stat. 29, 38, 44-45, 48 (import duties); Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 55, 60 (vessel registration); Act of March 1, 1790, ch. 2, § 3, 6, 1 Stat. 101, 102-03 (census); Act of May 31, 1790, ch. 15, § 2, 1 Stat. 124, 124-25 (copyright infringement; recovery of the moeity by the injured author); Act of July 20, 1790, ch. 29, §§ 1, 4, 1 Stat. 131, 133 (sea regulations); Act of July 22, 1790, ch. 33, § 3, 1 Stat. 137, 137-38 (regulation of trade with Indian tribes); Act of Aug. 4, 1790, ch. 35, §§ 55, 69, 1 Stat. 145, 173, 177 (import duties); Act of Feb. 25, 1791, ch. 10, §§ 8, 9, 1 Stat. 191, 195-96 (Bank of the United States); Act of March 3, 1791, ch. 15, § 44, 1 Stat. 199, 209 (duties on liquor); see also Act of Sept. 2, 1789, ch. 12, § 8, 1 Stat. 65, 67 (regulation of Treasury officers); Act of March 3, 1791, ch. 8, § 1, 1 Stat. 215 (extension of same); Act of July 5, 1790, ch. 25, 29 contained in acts passed by the Second, Third, and Fourth Congresses.* Like the actions of the early congresses, the decisions of this Court during the infancy of our Constitution demonstrate that qui tam actions were viewed as a lawful and proper means of advancing sovereign interests. Soon after the Constitution was adopted, for example, the Court held that statutes that provide a reward to an informer will be construed to authorize a qui tam suit by him even if that cause of action does not expressly appear in the statute. United States ex rel. Marcus, 317 U.S. at 537 n.4 (citing Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805)). And one of the earliest and most celebrated landmarks in this Court’s jurisprudence of federal-state relations—McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)}—"was a qui tam [Foomote continued from previous page] § 1, 1 Stat. 129 (extending provisions of the census Act of March 1, 1790, supra, to Rhode Island). ® The Second Congress, for example, enacted informer pro- visions in statutes governing the postal service, while extending qui tam enforcement of laws regulating trade with Indian tribes. See Act of Feb. 20, 1792, ch. 7, § 25, 1 Stat. 232, 239 (postal service); Act of March 1, 1793, ch. 19, § 12, 1 Stat. 329, 331 (regulation of trade with Indian tribes). Among statutes enacted by the Third Congress, similar provisions appeared in the Neutrality Act, see Act of June 5, 1794, ch. 50, § 3, 1 Stat. 381, 383, and in many provisions dealing with the collection of duties. See, e.g., Act of June 5, 1794, ch. 48, § 5, 1 Stat. 376, 378; see also Act of June 9, 1794, ch. 65, § 12, 1 Stat. 397, 400; Act of June 5, 1794, ch. 45, § 10, 1 Stat. 373, 375; Act of June 5, 1794, ch. 51, § 21, 1 Stat. 384, 389. The Fourth Congress extended earlier statutes regulating trade with Indian tribes, see Act of May 19, 1796, ch. 30, § 18, and provided that the government's decision to mitigate a fine or forfeiture would not affect an informer’s interest in his moiety. Act of March 3, 1797, ch. 13, §3, 1 Stat. 506, 506-07. 30 action, brought to recover a penalty.” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 537 (1832). Because “early congressional enactments provide con- temporaneous and weighty evidence of the Constitution’s meaning” (Printz v. United States, 521 U.S. 898, 905 (1997) (internal quotations and brackets omitted)), the fact that Con- gress so extensively relied on informer statutes to protect the federal fisc and further federal regulatory policies “when the founders of our government and framers of our Constitution were actively participating in public affairs” (Knowlton v. Moore, 178 U.S. 41, 56 (1900)) “goes a long way in the dir- ection of proving the presence of unassailable ground for the constitutionality of the practice.” United States v. Curtiss- Wright Export Corp., 299 U.S. 304, 327-28 (1936); see also Bowsher v. Synar, 478 U.S. 714, 723-24 (1986); Myers v. United States, 272 U.S. 52, 175 (1926); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (“[iJt is a contemporary interpretation of the most forcible nature”). Of particular rele- vance here, the prevalence of informer statutes at the founding provides powerful evidence that the Framers well understood that the United States might rely on qui tam actions to vindicate its rights. Because the “plan of the Con- vention” necessarily subjects States to suit by the United States (Alden, 119 S. Ct. at 2267), compelling proof would be needed to show that the Framers somehvuw intended to pre- clude the United States from relying on that traditional form of action in protecting its rights against state interference— especially where, as here, Congress does so to protect federal property from fraud. Vermont provides no such evidence. 4 > Amici Regents of the University of Minnesota ef al. contend that this Court’s decision in United States v. Peters, 3 U.S. (3 Dallas) 121 (1795), somehow establishes that qui tam suits may 31 3. Finally, Vermont suggests that even if the United States is a real party in interest, and therefore properly viewed as the plaintiff in this action, Mr. Stevens is an additional party whose participation in the suit is barred by Vermont’s sovereign immunity. According to Vermont, that conclusion follows from the fact that a gui tam plaintiff under the Act brings suit “for [himself] and for the United States Government,” 31 U.S.C. § 3730(b), and from this Court’s purported holding in Pennhurst IJ that the United States’ presence as a plaintiff never eliminates a State’s immunity with respect to a “co-plaintiff.” Vt. Br. 40-41, 46-47. Neither objection is sound. [Footmote continued from previous page] not be maintained against States. No State was even remotely a party to the case, however, and amici concede that Peters was not a qui tam action—it was a libel filed for various alleged torts com- mitted on the high seas by a ship owned by the Republic of France. In fact, even on their own terms, amici’s claims are strained to the point of absurdity: the contention is that counsel for the French ship’s captain mentioned the then-proposed Eleventh Amendment by way of analogy during his argument, and that the facts of the case might support a qui tam action, which had indeed separately been filed. This Court did not “broadly accept[{]” all of counsel’s arguments, as alleged by amici (Minn. Br. 8-9); it issued a three- line opinion stating that Members of the Court held differing views on the issues, but that a majority was of the view that a writ of pro- hibition should issue. 3 U.S. (3 Dallas) at 129. The recitals to that writ cited, as support for the prohibition, the law of nations and our treaties with the French. /d. at 129-30. L'Invincible, 14 U.S. (1 Wheat.) 238, 259-60 (1816), also relied on by amici as reaffirming the supposed holding of Peters, stated only that the recitals to the writ issued in Peters correctly stated the law applicable to alleged war prizes. 32 Vermont’s reliance on the Act’s description of a qui tam suit as an action brought by a person both for himself and for the government advances the analysis very little. The statu- tory language merely mirrors the phraseology used at com- mon law to denote that an action is brought by the plaintiff as a qui tam relator. Compare McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 317 (“John James, who sued as well for himself as for the state of Maryland”). Like other terms of art used by Congress, the phrase bears only the meaning given it by the accumulated tradition that it invokes. Morissette vy. United States, 342 U.S. 246, 263 (1952); Bell v. United States, 462 U.S. 356, 360 (1983). Nothing in the common law tradition suggests that a relator’s suit redresses any injury other than that suffered by the sovereign as a result of the defendant’s violation of the pertinent statutory norms.'° Indeed, the relator sues “for himself” only in the sense that he may receive, as a reward, part of the sovereign’s recovery. Because the relator does not have a personal cause of action against a gui tam defendant, it is error to view him as a “co- plaintiff” in the sense suggested by Vermont. In any event, Vermont’s reading of Pennhurst J] is itself erroneous, and thus Vermont’s claim must fail even if a qui tam relator properly is characterized as a “co-plaintiff.” The question this Court considered in Pennhurst I] was whether the Eleventh Amendment barred monetary suits against a State for violations of state law. One of the arguments ad- vanced by the plaintiffs was that the United States was '° Because Mr. Stevens has not sued the State on the basis of the adverse employment action taken against him by his employer, the Court need not consider in this case whether a different analysis would apply to a claim brought under the Act’s anti-retaliation provision, 31 U.S.C. § 3730(h). 33 already a plaintiff in the case, having sued the State for viola- tions of federal law. This Court ruled that the United States’ participation did not authorize the private parties to assert their own additional claims under state law. “(T]he United States does not have standing to assert the state-law claims of third parties,” the Court observed, and therefore “the ap- plicability of the Eleventh Amendment to respondents’ state- law claim is unaffected by the United States’ participation in the case.” Pennhurst IJ, 465 U.S. at 103 n.12. Pennhurst II did not address the situation that, on Vermont’s view of the statute, is presented here: a case in which the United States and a private party are “co-plaintiffs” on the same federal-law claim. In fuct, Arizona v. California, 460 U.S. 605 (1983), a case raising those facts but not cited by Vermont, rejects Vermont’s argument. In that case, the United States brought water claims against several States on behalf of certain Indian tribes. The tribes sought to inter- vene, but the defendant States objected to the tribes’ inter- vention on the basis of the Eleventh Amendment. This Court squarely rejected the States’ Eleventh Amendment claim, explaining that “the tribes do not seek to bring new claims or issues against the States” and “[t]herefore our judicial power over the controversy is not enlarged by granting leave to intervene.” Jd. at 614. Thus, even on Vermont’s view that Mr. Stevens should be considered a “co-plaintiff’ of the United States in this case, his presence in that purported role does not expand the claims before the Court and, therefore, “the State{‘s] sovereign immunity protected by the Eleventh Amendment is not compromised.” Jbid. D. The False Claims Act Satisfies Any Require- ment For Executive Branch Control That This Court Reasonably Might Impose Even if the Eleventh Amendment in fact invariab ly ired Ex ine ; ticipation in government suits 34 against States, as alleged by Vermont, the Attorney General’s power under the Act to control qui tam litigation surely would meet any standard for such participation that this Court reasonably might impose. 1. The Act expressly requires a relator to provide the Attorney General, when the complaint is filed, with a “written disclosure of substantially all material evidence and information the [relator] possesses * * *.” 31 U.S.C. § 3730(b)(2). On the basis of that information and of her own “diligent[{]” investigation of the allegations supporting the complaint (id. §§ 3730(a), 3730(b)(2)), the Attorney Gen- eral must make an affirmative decision whether to take over the prosecution of the case. That means, as the court of ap- peals noted, that she is authorized to intervene at the outset, take control of the case, and compromise it or end it for any legitimate governmental purpose “notwithstanding the qui tam plaintiff's desire that it continue.” Pet. App. 17. In ef- fect, the statute allows the Attorney General to leverage her resources by permitting the continuation of fraud cases that she might not otherwise have the ability to prosecute, despite their potential for redressing an injury to the public fisc. The Act also provides the Attorney General the means for keeping abreast of later developments in the litigation, such as evidence that might “escalate the magnitude or complexity of the fraud * * * or [that otherwise] make[] it difficult for the gui tam relator to litigate alone,” so that she may elect to intervene at a later time. S. REP. 345, at 26-27. Although Vermont stresses that such later intervention by the Attorney General does not “‘limit[] the status and rights’” of the relator under the Act (Vt. Br. 43, quoting 31 U.S.C. § 3730(c)(3)), the State is wrong to contend that that provi- sion denies the Attorney General “authoritative control over the litigation.” Jbid. Congress contemplated that even inter- vention at a later stage of the case would still “allow the Gov- 35 ernment to take over the suit.” S. REP. 345, at 27. Indeed, if there were any doubt on that score it would be rather odd to construe the statutory language, as Vermont urges, more broadly than its text fairly requires solely to bolster Vermont's challenge to the Act’s constitutionality.'! 2. Vermont contends, however, that States somehow will lose a fundamental safeguard of federalism unless this Court requires Executive Branch officials to conduct person- ally all litigation by the United States against a State of the Union. According to Vermont, gui tam suits under the Act “deprive[] Vermont of the affirmative discretion exercised by federal officers in their enforcement of federal laws,” prevent States from seeking the intercession of their congressional delegation in persuading Executive Branch officials not to prosecute, and generally “allow[] the United States to remove itself from political accountability.” Vt. Br. 37-38. Those claims are meritless. a The language on which Vermont relies is most naturally read as making clear that later intervention does not divest the relator of his share of any eventual recovery or of the limited right to participate in the action that he would have enjoyed had the Attorney General intervened at the outset. Indeed, because the Attorney General ordinarily is presumed to have the right to control all litigation in which the United States is a party, to the exclusion even of counsel for other government departments, see United States v. San Jacinto Tin Co., 125 U.S. 273, 278-82 (1888); Confiscation Cases, 74 U.S. (7 Wall.) 454, 458 (1868); The Gray Jacket, 72 U.S. (5 Wall.) 370, 371 (1866), stronger language than that relied on by Vermont would be necessary to conclude that the Attorney General does not have the ultimate authority to speak for the United States in litigation conducted under a statute that specifically gives her the night to interv~ne. 36 Vermont cites no authority, apart from its indefensibly broad reading of Blatchford and Alden, for the proposition that States invariably are entitled to an exercise of “discre- tion” by Executive Branch officials as a condition to suit. Moreover, Vermont is simply wrong in asserting that the False Claims Act forecloses that “discretion,” relieves the Attorney General from accountability, or somehow disables a State’s congressional delegation from interceding with the Executive Branch. Because the Attorney General has the statutory nght to intervene and terminate a gui tam suit, she remains account- able for the litigation. The paradoxical premise of Vermont’s argument is that, while Executive Branch officials alone are empowered by our Constitution to make the sensitive litiga- tion judgments that might be required by federal-state conflicts, the Attorney General will cravenly rely on the fact that a suit was filed by a relator (rather than a federal prosecutor) to look the other way, shirk her duties, and escape political accountability. E.g., Vt. Br. 38. Although Vermont’s own acts (as detailed in the Complaint and Written Disclosure) persuasively demonstrate that public officers on occasion engage in reprehensible conduct, it hardly needs saying that this Court, in framing rules of law, ordinarily proceeds on the opposite assumption—i.e., that public officers will “properly discharge{] their official duties.” United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926); see also United States v. Mezzanatto, 513 U.S. 196, 210 (1995). Indeed, Vermont’s argument rings parti- cularly hollow in this case, where the Attorney General has affirmatively opposed Vermont’s arguments in every court to which Vermont has presented them. Moreover, invoking the gui tam provisions of the Act in suits against States scarcely diminishes the value of States’ congressional representation. A State’s congressional dele- 37 gation can make as effective an argument for dismissal in this context as it can in any run-of-the-mine case in which a fed- eral prosecutor has brought suit, in the name of the United States, against a State of the Union. Moreover, Vermont retains the key procedural safeguard that congressional representation affords States in the federal system: Vermont can seek the enactment of federal /egis/ation that fully im- plements Vermont’s jaundiced view of qui tam litigation. South Carolina v. Baker, 485 U.S. 505, 512-13 (1988). That safeguard is more than sufficient to protect the general federalism concerns asserted by Vermont here, at least absent some “extraordinary defect[] in the nationai political process” that somehow has deprived Vermont “of its right to partici- pate” in the process of framing federal legislation. Baker, 485 U.S. at 512. Im fact, if this Court were to credit Vermont’s and its amici’s assertions about the patent un- wisdom of subjecting States to gui tam liability, it would also have to conclude that Vermont and her sister States will en- counter little difficulty in enlisting their respective con- gressional delegations to dispense with such liability entirely. Il. STATES OF THE UNION ARE “PERSONS” THAT MAY SUE AND BE SUED UNDER THE ACT A. Because The Court Of Appeals Lacked Juris- diction Over Vermont’s Statutory Arguments, This Court May Not Consider Them While the court of appeals correctly reviewed Vermont’s Eleventh Amendment claim, that court’s assertion of “pen- dent appellate jurisdiction” over the statutory issue cannot be reconciled with Swint v. Chambers County Comm'n, 514 38 U.S. 35, 49-50 (1995).'* Swint held that courts of appeals lack discretion “to append to an * * * appeal from a collateral order further rulings of a kind neither independently appeal- able nor certified by the district court.” 514 U.S. at 47.'° Although the Solicitor General correctly noted at the certiorari stage that Swinz left open the possibility that courts of appeals may have jurisdiction to review an otherwise non- appealable ruling that is “inextricably intertwined” with a properly appealable interlocutory order, or that must be decided to ensure “meaningful review” of the issue properly before the court (U.S. Pet. Br. at 10 n.5 (May 26, 1999)), 12 Vermont's interlocutory appeal of the denial of its motion to dismiss on Eleventh Amendment grounds falls within the narrow class of exceptions to the final judgment rule recognized in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). See Metcalf & Eddy, Inc., 506 U.S. at 147. States may appeal such orders immediately because the immunity from suit conferred by the Eleventh Amendment “is effectively lost if a case is errone- ously permitted to go to trial.” Jd. at 144. The State’s statutory claim, however, is a defense to liability, not an immunity from suit, and it may be asserted by the State on appeal from a final judgment. '3 The Court reasoned that the statutory scheme of 28 U.S.C. §§ 1292(a)-(b) contemplates that district courts have “first line discretion” (514 U.S. at 47), to determine which orders not enu- merated in 28 U.S.C. § 1291 or otherwise appealable under Cohen, supra, are appropriate for interlocutory review; that the Rules Enabling Act empowers the Court to expand the list of orders appealable on an interlocutory basis only through the rulemaking process of 28 U.S.C. § 2072 and not through judicial decision; and that “loosely allowing pendent appellate jurisdiction would encourage parties to parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets.” 514 U.S. at 49-50. _— 39 those circumstances do not justify review of the statutory issue pressed by Vermont here. The Eleventh Amendment issue is not “inextricably inter- twined” with the statutory question decided by the court of tutional issue on the assumption that States are “persons” under the False Claims Act. Indeed, this Court has followed precisely that course in the past. In Edelman v. Jordan, 415 U.S. 651 (1974), for example, the Court adjudicated the scope of a State’s Eleventh Amendment immunity without addressing whether States are “persons” under 42 U.S.C. § 1983, an issue that the Court only decided fifteen years later. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 63 n4 (1989). Moreover, the Eleventh Amendment question is not coterminous with the statutory question, ner does it subsume it. To the contrary, the statutory question is far broader: the State's arguments on that question, if accepted, would preclude even suits brought by the Attorney General, who concededly is not bound by the constitutional immunity that justified Vermont’s interlocutory appeal in the first place. The Solicitor General has suggested that the court of appeals may have properly reviewed the statutory question because “accepted principles of constitutional adjudication” require this Court to decide the “logically antecedent” statutory issue before the constitutional one. U.S. Pet. Br. at 10 n.5. That approach, however, begs the question of juris- diction. While this Court has long adhered to a “policy of avoiding the unnecessary adjudication of federal constitu- tional questions,” City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294 (1981) (emphasis added); see also United States v. National Treasury Emp. Union, 513 U.S. 454, 477 (1995), that prudential doctrine presupposes that the Court has jurisdiction to review both the constitutional and non- 40 constitutional grounds of decision. The doctrine does not it- self confer jurisdiction on an appellate court to decide an issue not otherwise before it. Indeed, it is, to say the least, anomalous to assert “pendent” jurisdiction over a question, not otherwise before the Court, for the sole purpose of avoiding, if possible, decision of the only issue subject to interlocutory review. In sum, there is no substantial basis on which to conclude that Vermont’s statutory challenge was properly before the court of appeals or can be addressed by this Court. B. No Canon of Construction Requires This Court To Presume That States Are Not Persons Under The Act Were this Court to reach the statutory question presented by Vermont, it would have to reject Vermont’s interpretation of the Act. Vermont's position flows almost entirely from its contention that Will establishes that “the plain meaning” of the word person “excludes” States unless Congress uses a “plain statement” to refer to them by name. Vt. Br. 11-12, 18. Vermont is wrong both in its reading of Will and in supposing that any “plain statement” canon applies here. 1. Will did not “adopt a per se rule prohibiting the interpretation of general liability language to include the States, absent a clear statement by Congress to the effect that Congress intends to subject the States to the cause of action.” Hilton v. South Carolina Public Rys. Comm'n, 502 U.S. 197, 205 (1991). As this Court repeatedly has ruled—both before and after its decision in Wil/—’there is no hard and fast rule of exclusion’ of the sovereign.” Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 83 (1991) (quoting United States v. Cooper Corp., 312 U.S. 600, 604-05 (1941)). Not surprisingly, this Court “many times has * * * held that the United States or a state is a ‘person’ within the meaning of statutory provisions applying 41 only to persons.” Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 91-92 (1934); see also Jefferson County Pharm. Ass'n v. Abbott Labs., 460 U.S. 150, 154-55 (1983); Ohio ¥. Helvering, 292 U.S. 360, 371 (1934). Instead, Will simply “appl[ied] an ‘ordinary rule of statu- tory construction,” Hilton, 502 U.S. at 205 (quoting Will, 491 U.S. at 65), that operates “‘where statutory intent is am- biguous.’” Jd. at 206 (quoting Gregory v. Ashcroft, 501 U.S. 452, 470 (1991)). In those circumstances, “[s]ince, in com- mon usage, the term ‘person’ does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it.” United States v. Cooper Corp., 312 U.S. at 604. The principle on which Vermont relies, in other words, is a tie-breaker that comes into operation at the end of the process of construction, not, as Vermont would have it, a rule of law that States are not “persons” unless Congress invokes explicit language of inclusion. See Salinas v. United States, 522 U.S. 52, 60 (1997) (“the rules of statutory construction we have followed to give proper respect to the federal-state balance * * * d/o] not apply when a statute [is] unambiguous. A statute can be unambiguous without addressing every interpretive theory offered by a party” (internal citations omitted)).'* |4 Vermont's invocation of the doctrine of constitutional “doubt” (Vt. Br. 16-17) fails for much the same reason. That canon may be applied only to embrace a statutory reading “not plainly con- trary to the intent of Congress,” United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994), and thus can have no operation where, as here, the statute unambiguously reaches the challenged conduct. In any event, even if there were some doubt about the constitutionality of a particular application of the Act (i.e., suits by qui tam relators), that doubt would scarcely justify the statutory construction urged by Vermont, which would have the primary 42 2. In any event, that tie-breaking canon would have no bearing in this case even if Vermont could establish that the Act is ambiguous, because the Act makes “person{s]” liable to the United States for fraud against the federal government. Under Vermont’s statutory theory, the Attorney General herself could not have brought suit against Vermont. Neither Vermont nor its amici, however, have cited a single case from this Court that applies Wil/’s rule of statutory construc- tion where, as here, a federal statute grants a right of action to the United States. In fact, Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), concluded that States were “persons” suable under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 er seq., based in part on the Court’s express rejection of such a proposition. As the Court noted, “the Constitution presents no barrier to lawsuits brought by the United States against a State” and “(flor purposes of such lawsuits, States are naturally just like ‘any nongovernmental entity.”” Jd. at 11. Accordingly, “there are no special rules dictating when they may be sued by the Federal Government, nor is there a stringent interpretive principle guiding construction of statutes that appear to authorize such suits.” Jbid.'> [Footnote continued from previous page] effect of foreclosing suits brought by the Attorney General on behalf of the United States that are not open to any conceivable constitutional objection. 'S Although the Court subsequently repudiated the constitutional holding of Union Gas in Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Court never has wavered from the statutory analysis that commanded a majority of the Court in Union Gas. As the Court noted in Union Gas, a rule exempting States from suits by the United States, save where Congress expressly names States as a 43 The Court’s refusal to apply any “stringent interpretive principle” (Union Gas, 491 U.S. at 11) to federal statutes that authorize suits by the United States in no way denigrates “the systemic importance of the federal balance.” Arkansas v. Farm Credit Servs., 520 U.S. 821, 827 (1997). It simply recognizes that in cases in which the United States is a plaintiff “the other side of the federal balance must be con- sidered,” because “[i}]n our constitutional system the National Government has sovereign interests of its own.” /d. As this Court explained in Block v. North Dakota, 461 U.S. 273 (1983), “[t}he judicially created rule that a sovereign is normally exempt from the operation of a generally worded statute * * * serves the public policy of preserving the public rights, revenues and property from injury and loss, by the negligence of public officers.” Jd. at 290. Because that “judge-created rule [is] designed to protect the interests of the citizens of one particular State,” it “must yield in the face of * * * evidence that Congress has determined that the national interest requires a contrary rule.” Jbid. [Footnote continued from previous page] parties defendant, would effectively repudiate the traditional rule “that no explicit statutory authorization is necessary before the Federal Government may sue a State.” Union Gas, 491 U.S. at 11 (citing United States v. California, 332 U.S. 19, 26-28 (1947)); see also West Virginia, 479 U.S. at 311-12. Indeed, Justice Scalia fully joined the part of the Court’s opinion in Union Gas that embraced that statutory analysis—and which rejected the interpretive methodology urged by Vermont here—while dissenting from the Court’s Eleventh Amendment holding and later joining the Seminole Tribe majority in overruling that holding. 44 C. The Act Unambiguously Applies To States Of The Union To the extent Vermont and its amici even attempt to address whether Congress intended to make States suable under the Act by using traditional “aids to construction,” Cooper Corp., 312 U.S. at 604-05; Primate Protection League, 500 U.S. at 83, their arguments are almost entirely misdirected. According to Vermont and its amici, the con- trolling question is whether Congress intended to subject States to suit in 1863. In 1986, however, Congress repealed the entire paragraph that formerly defined the scope of the Act and enacted, in its place, language that applies the Act’s proscriptions to “[aJny person.” See False Claims Amend- ments Act of 1986, Pub. L. 99-562, 100 Stat. 3153, 3153.'° '© Before 1986, the language preceding paragraph (1) of Section 3729 read: A person not a member of an armed force of the United States is liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action, if the person— 31 U.S.C. § 3729 (1982). The Act then went on to enumerate the prohibited conduct in paragraphs (1) through (6). In 1986 Congress entirely deleted that introductory paragraph and enacted new charging language: Section 3729 of Title 31, United States Code, is amended— (1) by striking the matter precediny paragraph (1) and inserting the following: “(a) LIABILITY FOR CERTAIN ACTS. —Any person who—” False Claims Amendments Act of 1986, Pub. L. No. 99-562, 100 Stat. 3153, 3153 (emphasis added). ee ge 45 Moreover, Congress made other changes to the text of the Act that unambiguously establish its intent to subject the States to suit. And Congress also expressly stated that intent in the relevant Committee Report. Vermont’s statu- tory argument to the contrary is simply untenable. 1. Three distinct aspects of the statutory text squarely demonstrate that Congress clearly intended that the Act apply to the States. First, the Act reaches “/a]/ny person” without qualification. “Read naturally, the word ‘any’ has an expan- sive meaning, that is, ‘one or some indiscriminately of what- ever kind.’” United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976)); see also Brogan v. United States, 118 S. Ct. 805, 808 (1998) (statute that criminalizes “any” false statement reaches “a false statement ‘of whatever kind’”). Because the term “any” imports “no restriction” (United States v. Turkette, 452 U.S. 576, 580 (1981)) or “limit[ation]” (Jnternational Union of Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491 (1972); Shea v. Vialpando, 416 U.S. 251, 260 (1974)), it “leaves no doubt as to the Congressional intention to include all” members of the category identified by the enactment. United States vy. Rosenwasser, 323 U.S. 360, 363 (1945). And since States can be “persons” suable under federal statutes, see, e.g., Sims v. United States, 359 U.S. 108, 112-13 (1959); Georgia y. Evans, 316 U.S. 159, 161 (1942), Congress’ use of the expansive term “any” necessarily manifested its intent to reach States among the “person[s]” that might be subjected to suit. Second, the 1986 enactment included a provision author- izing the Attorney General to issue “civil investigative demands” (CIDs) when she conducts “false claim law in- vestigations.” 31 U.S.C. §3733(a). The CID provisions define a “false claims law investigation” as an inquiry con- 46 ducted “for the purpose of ascertaining whether any person is or has been engaged in any violation of a false claims law,” id. § 3733(/(2), and expressly include the provisions of the Act that are at issue here (“sections 3729 through 3732”) as “false claims laws” subject to such investigation. Jd. § 3733()(1)(A). Because the CID provisions also expressly define “person” to include “any State or political subdivision of a State” (id. § 3733(/)(4)), the conclusion is inescapable that States are “persons” under Section 3729—else there would be little point in authorizing the Attorney General to investigate whether a State “is or has been engaged in any violation” of that section. Vermont objects, however, that the definitions in Section 3733(/) apply only “for purposes of” the CID provisions. It contends that those definitions therefore bespeak an intent to exclude States from other parts of the Act, since “[i]f the term ‘person’ as used in the FCA already included the States, this added definition would have been unnecessary.” Vt. Br. 20- 21. That argument overlooks the fact that the CID provisions do not merely define “person” to include States, but also expressly refer to Section 3729 as one of the laws that such “person{[s]” may “violat[e].” Moreover, the definition of “person” in the CID provisions includes not only States, but also “any natural person, partnership, corporation, associa- tion, or other legal entity.” 31 U.S.C. § 3733(/(4). Under Vermont’s interpretive theory, therefore, Section 3729 would apply to no one. There is no reason for this Court to accept such an absurd interpretation of the Act. See, e.g., Citizens Bank v. Strumpf, 516 U.S. 16, 20 (1995) (“fiJt is an elementary rule of construction that the act cannot be held to destroy itself’) (internal quotation marks and citation omitted). Third, Vermont does not seriously dispute that States are “persons” that can initiate gui tam proceedings as plaintiffs 47 under the Act, nor could it. Before the 1986 enactment, the National Association of Attorneys General “strongly urge[d]” Congress to remove impediments that had been fashioned by lower courts to such suits (S. REP. 345, at 13), and Congress responded by, inter alia, amending the Act to permit “State and local governments to join State law actions with False Claims Act actions brought in Federal district court * * *.” Jd. at 16; see 31 U.S.C. § 3732(b). “Since there is a presumption that a given term is used to mean the same thing throughout a statute,” Brown v. Gardner, 513 U.S. 115, 118 (1994), and Section 3730 uses the term “person” to refer both to gui tam relators and to potential defendants, “it is virtually impossible” (ibid.) to read the Act to say that States are persons in the former sense but not in the latter. While Vermont stresses that this canon of interpretation is “not rigid” (Vt. Br. 24), the State offers nothing to counteract the force of that canon here. 2. The plain-language interpretation of the Act is fully consistent with the Act’s broad remedial purposes. This Court has long recognized that the Act “was intended to reach all types of fraud, without qualification, that might result in financial loss to the Government.” Niefert-White, 390 U.S. at 232. Indeed, more than 50 years ago, this Court held that the Act covers contractors who defraud State agencies out of federal grant monies, since “Government money is as truly expended whether by checks drawn directly against the Treasury to the ultimate recipient or by grants in aid to the states.” United States ex rel. Marcus, 317 U.S. at 544. As the Court noted, grants in aid to the States “are as much in need of protection from fraudulent claims as any other federal money.” /bid. Whatever ambiguity may have existed before 1986 concerning whether the Act fully addressed that “need” in cases in which a State itself attempted to cheat the Union, the 48 1986 amendments unambiguously removed any doubt on the question. Indeed, as the court of appeals noted, the Senate Report that accompanied the legislation expressly noted that the Act “reaches all parties” who might defraud the govern- ment, including “States and political subdivisions thereof.” S. REP. 345, at 8-9. While Vermont attempts to denigrate that statement as nothing more than the uninformed views of a later Congress on the meaning of language enacted more than a century earlier (Vt. Br. 26-27), its argument com- pletely overlooks the fact that the controlling language (“any person”) was enacted for the first time by the 1986 Congress. Thus, even if Vermont were correct in asserting that the 1986 Congress misconceived the original Act’s scope, and that consequently it erred in its belief that the 1986 Act did not change the statute’s breadth, the Court would still have to treat the Senate Report as “the authoritative source for legislative intent” with respect to the language at issue here, which was clearly enacted by the 1986 Congress. See Thornburg v. Gingles, 478 U.S. 30, 44 n.7 (1986); see also Blanchard v. Bergeron, 489 U.S. 87, 91 (1989). 3. Finally, there is no force to Vermont’s contention that Congress could not have intended that States be “persons” under the Act, because public entities are not ordinarily exposed to the “punitive” liability for treble damages or civil fines. Vt. Br. 20-21. This Court has repeatedly held that the double damages and fines provided for in the original Act were intended to serve remedial rather than punitive purposes, and afforded the government no more than “com- plete indemnity for the injuries done it,” including “not mere- ly the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government's efforts to root out deceptive prac- tices directed at the public purse.” United States v. Halper, 490 U.S. 435, 444-45 (1989); see also United States y. 49 Bornstein, 423 U.S. at 314-15 & n.11; United States ex rel. Marcus, 317 U.S. at 549, 551-52. That remedial rationale for the Act’s damages and civil fines does not disappear, as Vermont contends, merely be- cause Congress determined in 1986 that presumptively larger liquidated damages are now neces ry to make the govern- ment whole. Indeed, even if Vermont were correct that the Act incorporates some punitive elements, that would not establish any incongruity in subjecting States to its pro- visions. Public entities ordinarily are exempt from such liability in order to spare innocent taxpayers from the burden of paying for the misdeeds of public officials. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267-69 (1981). That rationale carries little force where, as here, the issue 1s which set of taxpayers—state or federal—will be left to pay for the State’s fraud. It is hardly incongruous to ascribe to Congress the intent to ensure that that burden will not be placed on the taxpayers of this Nation who have no direct ability to control the State’s conduct. Compare Block, 461 U.S. at 290. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. Counsel: THEODORE B. OLSON Semamees SOULE Counsel of Record MATTHEW E.C. PIFER THOMAS G. HUNGAR MARK G. HALL MIGUEL A. ESTRADA FRANK & COLLINS, INC. GIBSON, DUNN & CRUTCHER LLP PO] Box 1307 1050 Connecticut Avenue, N.W. a Vermont 05402 Washington, D.C. 20036 (802) 658-2311 (202) 955-8500 Counsel for Respondent October 22, 1999 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0278%3A09. Public record. Not legal advice.