Respondents Brief — Vermont Agency of Natural Resources v. United States Ex Rel. Stevens

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EL 5

No. 98-1828 —

In the Supreme Court of the United States

STATE OF VERMONT AGENCY OF NATURAL RESOURCES,

PETITIONER

UNITED STATES OF AMERICA, EX REL.

JONATHAN STEVENS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

MICHAEL F. HERTZ

DOUGLAS N. LETTER

JOAN E. HARTMAN

MICHAEL E. ROBINSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 5 14-221 7

QUESTIONS PRESENTED

1. Whether a State or state agency is a “person” subject

to liability under the False Claims Act (FCA), 31 U.S.C. 3729

et seq.

2. Whether a qui tam suit under the FCA against a State

or state agency is barred by the Eleventh Amendment.

——

—

TABLE OF CONTENTS

Argument:

I. Petitioner is a “person” subject to liability under

the FCA

A. In statutes that define the relationship between

regulated parties and the United States, the

word “person” has generally been construed

to include the States

B. The subject matter of the FCA strongly

suggests that States and state agencies are

subject to potential liability under the Act ............

C. The FCA’s other uses of the word “person”

confirm that States and their agencies are

subject to potential FCA liability

D. The legislative history of the 1986 FCA

amendments demonstrates Congress's intent

that States would be subject to the Act .................

E. The remedies provided by the FCA are not

presumptively inapplicable to government

entities

II. Because a qui tam action serves to protect the

property of the United States government, and is

subject to significant control by the United States,

it is not barred by che Eleventh Amendment

A. The qui tam mechanism is a well-established

hybrid that has characteristics of private

suits but was employed by Congress in the

FCA as a means of protecting the property

of the United States

(III)

de de te — —

Page

B. The United States retains significant incidents

of control over qui tam suits under the FCA,

thereby insuring ultimate political accountability

for such suits 41

C. The application of Eleventh Amendment 1

ciples characteristically turns on an ea ion

of the interests at stake in a particular suit ........... 43

Conclusion 50

Appendix la

TABLE OF AUTHORITIES

Cases:

Advanced Magnetics, Inc. v. Bayfront Partners,

Inc., 106 F.3d 11 (2d Cir. 1997) 41

Alabama v. Texas, 347 U.S. 272 (1954) 39

Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975) 37

Alden v. Maine, 1198. Ct. 2240 (19999 20, 21, 41, 42,

44, 45, 47, 48

American Soc'y of Mechanical Eng’rs, Inc. v.

Hydrolevel Corp., 456 U.S. 556 (1982) 31, 32

Arizona v. California, 460 U.S. 605 (1983) 22

Atascadero State Hosp. v. Scanlon, 473 U.S.

234 (1985) 34, 40

Blatchford v. Native Village, 501 U.S. 775 (1991) — 42, 44, 49

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

429 U.S. 477 (1977)

California v. United States, 320 U.S. 577 (194)

Coleman v. Miller, 307 U.S. 433 (1989)

Debs, In re, 158 U.S. 564 (1895)

Diamond v. Charles, 476 U.S. 54 (1986)

Director, OWCP v. Newport News Shipbuilding &

Dry Dock Co., 514 U.S. 122 (1995)

Cases Continued: Page

Edelman v. Jordan, 415 U.S. 651 (1974) 44

Ford Motor Co. v. Department of Treasury, 323

U.S. 459 (1945) 40, 44

Garcia v. United States, 469 U.S. 70 (1983) 30

General Tel. Co. v. EEOC, 446 U.S. 318 (1980) ............... 48

Georgia v. Evans, 316 U.S. 159 (1942) 18

Great N. Ins. Co. v. Read, 322 U.S. 47 (1949 40

Green v. Mansour, 474 U.S. 64 (1985) 46

Gregory v. Ashcroft, 501 U.S. 452 (1991) 25, 26

Hans v. Louisiana, 134 U.S. 1 (1890) 40

Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 989 (1997) 36. 37-38

INS v. Chadha, 462 U.S. 919 (1983) 47

Idaho v. Coeur d'Alene Tribe, 521 U.S. 261

(1997) 45, 46

Kentucky v. Graham, 473 U.S. 159 (1985) 45

Lake Shore & Mich. S. Ry. v. Prentice, 147

U.S. 101 (1898) 31

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) 38

Marvin v. Trout, 199 U.S. 212 (1905) 35

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1819) 33

Monell v. New York City Dep't of Soc. Servs., 436

U.S. 658 (1978) 45

New Hampshire v. Louisiana, 108 U.S. 76 (1883) ............ 44. 45

North Dakota v. Block, 461 U.S. 273 (1983) 21

Ohio v. Helvering, 292 U.S. 360 (1934) 19

Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387

(1938) .. 45

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) 45, 46

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ......... 21

Principality of Monaco v. Mississippi, 292 U.S. 313

(1984) 44

Cases—Continued:

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 139 (1993)

Regents of Univ. of Cal. v. Doe, 519 U.S. 425

(1997) .....

SEC v. United States Realty & Improvement Co..

310 U.S. 434 (1940)

Searcy v. Philips Elecs. N. Am. Corp, 117 F.3d

154 (5th Cir. 1997)

Seminole Tribe v. Florida, 517 U.S. 44 (1996)

Sims v. United States, 359 U.S. 108 (1959)

South Dakota v. North Carolina, 192 U.S. 286

(1904)

Spiller v. Atchison, Topeka & Santa Fe Ry.

253 U.S. 117 (1920)

Standard Oil Co. v. New Jersey, 341 U.S. 428

(1951)

Swint v. Chambers County Comm'n, 514 U.S. 35

(1995)

United States ex rel. Kelly v. Boeing Co., 9 F.3d

743 (9th Cir. 1993), cert. denied, 510 U.S. 1140

(1994)

United States ex rel. Killingsworth v. Northrop

Corp., 25 F.3d 715 (9th Cir. 1994)

United States ex rel. Long v. SCS Bus. & Technical

Inst., Inc., 173 F.3d 870, supp. op., 173 F.3d 890 (D.C.

Cir. 1999), petition for cert. pending, No. 99-213

(filed Aug. 2, 1999)

United States ex rel. Marcus v. Hess, 317 U.S. 537

8-9, 17

(1943) 3, 22, 23, 25, 31, 35

United States ex rel. Sequoia Orange Co. v. Baird-

Neece Packing Corp., 151 F.3d 1139 (9th Cir. 1998),

cert. denied, 119 S. Ct. 794 (1999)

United States ex rel. Springfield Terminal Ry. v.

Quinn, 14 F.3d 645 (D.C. Cir. 1994)

United States ex rel. State of Wisconsin v. Dean, 729

F. 2d 1100 (7th Cir. 1984)

27, 28

VII

Cases Continued: Page

United States ex rel. Stillwell v. Hughes Helicopters,

Inc., 714 F. Supp. 1084 (C.D. Cal. 1989) 3, 35

United States ex rel. Zissler v. Regents of the

Univ. of Minn., 154 F.3d 870 (8th Cir. 1988) 25

United States v. Bornstein, 423 U.S. 303 (1976) ........ 2. 11. 30

United States v. California:

297 U.S. 175 (1936) 19, 25

332 U.S. 19 (1947) 20

United States v. Halper, 490 U.S. 435 (1989). 31

United States v. Midwest Oil Co., 236 U.S. 459 (1915) ... 39

United States v. Neifert-White Co., 390 U.S. 228

(1968) 24

United States v. Sheffield Bd. of Comm'rs, 435

U.S. 110 (1978) 29

Van Brocklin v. Tennessee, 117 U.S. 151 (1886) 39

West Virginia v. United States, 479 U.S. 35

(1987) 21

Will v. Michigan Dep't of State Police, 491 U.S. 58

(1989) 18, 20

Wilson v. Omaha Tribe, 442 U.S. 653 (1979) 18

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (182) 33

Young, Ex parte, 209 U.S. 123 (1908) 45, 46, 47

Constitution and statutes:

U.S. Const.

Art. II. § 2, Cl. 2 (Appointments Clause) 36, 42

Art. III 47

Art. IV, § 3, Cl. 2 (Property Clause) 2, 15, 38, 41

Amend. XI passim

Act of Apr. 10, 1816, ch. 44, § 7, 3 Stat. 269 33

Act of Mar. 2, 1863, ch. 67, 12 Stat. 696 2

§ 3, 12 Stat. 698 2

§ 4, 12 Stat. 698 2

§ 6, 12 Stat. 698 3

VIII

Statutes—Continued: Page

Act of Dec. 23, 1943, ch. 377, § 1:

57 Stat. 608 4

57 Stat. 609 3,4

Clean Water Act of 1977, 33 U.S.C. 1251 ef e. 7

False Claims Act, 31 U.S.C. 3729 et seq. 2

31 U.S.C. 3729 8, 10, 29

31 U.S.C, 372%a) passim

31 U.S.C. 3729%a)(1) 4, 39

31 U.S.C, 3729(a(2)-(7) 4

31 U.S.C. 3730(a) 5, 16, 21

31 U.S.C. 3730(b)(1) 5, 6, 10, 27, 35, 42, 49

31 U.S.C. 373006) 2) 5, 6, 8, 22, 42

31 U.S.C. 3730003) 6

31 U.S.C. 37 300b¹ν 16

31 U.S.C. 3730(b)(4)(B) 16

31 U.S.C. 3730(e\1) 6, 16, 22

31 U.S.C. 37 30%, A) 7

31 U.S.C. 3730003) 6

31 U.S.C. 37 30d) 5, 7, 37

31 U.S.C. 3730(d\(2) 7. 37

31 U.S.C. 3730(e)4) 28

31 U.S.C. 3730(h) 36

31 U.S.C. 3733 5, 11, 12, 26

31 U.S.C. 3783) 5, 26

31 U.S.C. 373300) 5, 11, 13, 27

31 U.S.C. 3733(1\(4) 5, 11, 12, 26

False Claims Amendments Act of 1986, Pub. L.

No. 99-562, 100 Stat. 3153, § 2, 100 Stat. 3153

Safe Drinking Water Act, 42 U.S.C. 300f et seq.

15 U.S.C. 15(a)

28 U.S.C. 2408)

31 U.S.C. 282(C) (1946)

4, 28, 29

31 U.S.C. 232(E)(1) (1946)

31 U.S.C. 232(E)(2) (1946)

42 U.S. C. 1983

Seaeanaok a

—— — — —

Miscellaneous: Page

3 William Blackstone, Commentaries on the Laws of

England 3

H.R. Rep. No. 2, 37th Cong., 2d Sess. Pt. ii-a (1862) ........ * 2

H.R. Rep. No. 660, 99th Cong., 2d Sess. (1986) 2,4,17

28, 30, 31

S. Rep. No. 345, 99th Cong., 2d Sess. (1986) 4, 24, 25,

27, 28, 39, 41

Joseph Story, Commentaries on the Constitution of

the United States (Ronald D. Rotunda &

John E. Nowak eds., 1987) 39

In the Supreme Court of the United States

No. 98-1828

STATE OF VERMONT AGENCY OF NATURAL RESOURCES,

PETITIONER

UNITED STATES OF AMERICA, EX REL.

JONATHAN STEVENS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-85) is

reported at 162 F.3d 195. The opinion of the district court

(Pet. App. 86-87) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 7, 1998. A petition for rehearing was denied on

April 13, 1999. Pet. App. 89-90. The petition for a writ of

certiorari was filed on May 12, 1999, and was granted on

June 24, 1999. 119 S. Ct. 2391. The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Property Clause of the United States Constitution,

Article IV, Section 3, Clause 2; the Eleventh Amendment to

the United States Constitution; and pertinent provisions of

Sections 3729 and 3730 of Title 31, United States Code, are

reproduced as an appendix to this brief.

STATEMENT

1. The False Claims Act (FCA or Act), 31 U.S.C. 3729 et

seq., “is used as the primary vehicle by the Government for

recouping losses suffered through fraud.” H.R. Rep. No.

660, 99th Cong., 2d Sess. 18 (1986). The FCA was enacted in

1863 (see Act of Mar. 2, 1863 (1863 Act), ch. 67, 12 Stat. 696),

and “was originally aimed principally at stopping the mas-

sive frauds perpetrated by large contractors during the Civil

War,” United States v. Bornstein, 423 U.S. 303, 309 (1976).

In addition, Congress had before it substantial evidence “of

fraud by state officials in the procurement of military sup-

plies for state troops, the costs of which were ultimately

borne by the United States.” Pet. App. 25; see id. at 25-26

(discussing H.R. Rep. No. 2, 37th Cong., 2d Sess. Pt. ii-a

(1862)). The 1863 Act provided that “any person not in the

military” who submitted a false or fraudulent claim for

payment by the United States government would “forfeit

and pay to the United States the sum of two thousand

dollars, and, in addition, double the amount of damages

which the United States may have sustained.” § 3, 12 Stat.

698.

The 1863 Act further provided that a suit to recover the

statutory forfeiture “may be brought and carried on by any

person, as well for himself as for the United States; the same

shall be at the sole cost and charge of such person, and shall

be in the name of the United States.” § 4, 12 Stat. 698. If the

suit resulted in a monetary recovery, the award was divided

evenly between the private plaintiff and the United States.

§ 6, 12 Stat. 698. In authorizing suits by private parties

(known as relators) to coilect the statutory forfeitures, the

1863 Act employed a venerable mode of procedure commonly

referred to as a qui tam action.

The Act was amended in 1943 to preclude “parasitical” qui

tam actions derived from information in the government’s

possession; to authorize the government to take over the

prosecution of qui tam suits; and to reduce the relator’s

share of any recovery that such actions produced.” Except

The term “qui tam” is an abbreviation for the Latin phrase “qui

tam pro domino rege quam pro se ipso in hac parte sequitur,” which

means “who brings the action for the King as well as for himself.” United

States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F. Supp. 1084, 1086

n.1 (C.D. Cal. 1989). Blackstone explained:

More usually, these forfeitures created by statute are given at large,

to any common informer; or, in other words, to any such person or

persons as will sue for the same: and hence such actions are called

popular actions, because they are given to the people in general.

Sometimes one part is given to the king, to the poor, or to some public

use, and the other part to the informer or prosecutor; and then the

suit is called a qui tam action, because it is brought by a person “qui

tam pro domino rege, &c, quam pro seipso in hac parte sequitur.” If

the king therefore himself commences this suit, he shall have the

whole forfeiture. But if any one hath begun a qui tam, or popular

action, no other person can pursue it; and the verdict passed upon the

defendant in the first suit is a bar to all others, and conclusive even to

3 William Blackstone, Commentaries on the Laws of England *160

(footnotes omitted).

2 In United States ex rel. Marcus v. Hess, 317 U.S. 537, 545-548

(1943), this Court held that a qui tam suit under the FCA could go forward

even if the allegations in the complaint were derived entirely from a

criminal indictment filed by the government in a related case. Congress

amended the Act shortly thereafter to preclude qui tam suits “based upon

evidence or information in the possession of the United States, or any

agency, officer or employee thereof, at the time such suit was brought.”

Act of Dec. 23, 1943, ch. 377, f 1, 57 Stat. 609; 31 U.S.C. 232(C) (1946), see

United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 649-

for the 1943 amendments, however, the Act remained sub-

stantially unchanged between 1863 and 1986. After a com-

prehensive re-examination of the FCA, Congress enacted

the False Claims Amendments Act of 1986, Pub. L. No. 99-

562, 100 Stat. 3153, which substantially revised the Act “{i}n

order to make the statute a more useful tool against fraud

in modern times.“ S. Rep. No. 345, 99th Cong., 2d Sess. 2

(1986). Inter alia, the 1986 amendments increased the

amount of damages and penalties to be awarded for vio-

lations; clarified the Act’s scienter requirement and its

definition of “claim”; expanded the rights of qui tam relators

and allowed them to recover a somewhat greater share of

any monetary award; and enhanced the government’s ability

to conduct investigations prior to the filing of FCA suits.

See H.R. Rep. No. 660, 99th Cong., 2d Sess. 17 (1986).

In its current form, the FCA prohibits any “person” from

“knowingly presentlingl. or eausling] to be presented, to an

officer or employee of the United States Government or a

member of the Armed Forces of the United States a false

or fraudulent claim for payment or approval.” 31 U.S.C.

3729(a)(1). The Act also prohibits a variety of related decep-

tive practices involving government funds and property. 31

U.S.C. 3729(a)(2)-(7). A “person” who violates the FCA “is

liable to the United States Government for a civil penalty of

not less than $5,000 and not more than $10,000, plus 3 times

the amount of damages which the Government sustains.” 31

U.S.C. 372%a).*

650 (D.C. Cir. 1994). The 1943 amendments also authorized the United

States to take over the prosecution of a qui tam action at any time within

60 days after the suit was filed. § 1, 57 Stat. 608; 31 U.S.C. 282(C) (1946).

Finally, the amendments provided that the relator would receive no more

than 10% of the proceeds in suits taken over by the United States, and no

more than 25% in suits prosecuted by the relator. § 1, 57 Stat. 609: 31

U.S.C. 232(E)(1) and (2) (1946).

Buch a person “shall also be liable to the United States Govern-

ment for the costs of a civil action to recover any such penalty or

—

For purposes of Section 3729, the term person“ is not

defined. A different provision of the FCA authorizes

the Attorney General to issue civil investigative demands

(CIDs) compelling the production of evidence. 31 U.S.C.

3733. A CID may be issued “[wJhenever the Attorney

General has reason to believe that any person may be in

possession, custody, or control of any documentary material

or information relevant to a false claims law investigation.”

31 U.S.C. 3733(a)(1). The term “false claims law investi-

gation” is defined to mean “any inquiry conducted by any

false claims law investigator for the purpose of ascertaining

whether any person is or has been engaged in any violation

of a false claims law.” 31 U.S.C. 37330002). For purposes of

Section 3733, “the term ‘person’ means any natural person,

partnership, corporation, association, or other legal entity,

including any State or political subdivision of a State.” 31

U.S.C. 37330004).

The FCA continues to authorize enforcement actions to be

filed either by the Attorney General or by private relators.

Section 3730(a) provides that Hilf the Attorney General

finds that a person has violated or is violating section

3729, the Attorney General may bring a civil action under

this section against the person.” 31 U.S.C. 3730(a). Section

3730(b)(1) states that Ja] person may 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)(1).

When a qui tam action is brought, the complaint is filed in

camera and remains under seal for at least 60 days. 31 U.S.C.

3730(b)(2). The complaint “shall not be served on the de-

damages.” 31 U.S.C. 3729%a). The “costs” to which Section 3729(a) refers

do not include attorneys’ fees or the costs of the government's investiga-

tion. The relator in a successful qui tam action may recover “an amount

for reasonable expenses which the court finds to have been necessarily

incurred, plus reasonable attorneys’ fees and costs.” 31 U.S.C. 3730(d\(1).

fendant until the court so orders,” 31 U.S.C. 3730(b)(2), and

the defendant “shall not be required to respond to any

complaint filed under [Section 3730] until 20 days after the

complaint is unsealed and served upon the defendant,” 31

U.S.C. 3730(b)(3). The Act provides the government the

opportunity to intervene in the suit “within 60 days after it

receives both the complaint and the material evidence and

information,” 31 U.S.C. 3730(b)(2), in which case the govern-

ment “shall have the primary responsibility for prosecuting

the action, and shall not be bound by an act of the person

bringing the action,” 31 U.S.C. 3730(c)(1). The 60-day period

may be extended by the district court if the government

shows “good cause” for an extension. 31 U.S.C. 3730(b)(3).

The government retains significant prerogatives in qui

tam litigation even when it declines to intervene at the

outset of a suit. A qui tam suit “may be dismissed only if the

court and the Attorney General give written consent to the

dismissal and their reasons for consenting.” 31 U.S.C.

3730(b)(1).* If the government does not intervene within the

initial 60-day period, “the court, without limiting the status

and rights of the person initiating the action, may never-

theless permit the Government to intervene at a later date

upon a showing of good cause.” 31 U.S.C. 3730(c)(3). When

it has intervened in a qui tam suit, “[t]he Government may

dismiss the action notwithstanding the objections of the

person initiating the action if the person has been notified by

the Government of the filing of the motion and the court has

In the government's view, Section 3730(b)(1) makes the consent of

the Attorney General an absolute prerequisite to the dismissal, pursuant

to settlement, of a qui tam action. The Fifth Circuit has agreed. See

Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 156-158 (5th Cir.

1997). The Ninth Circuit, by contrast, has held that the district court may

approve the voluntary settlement and dismissal of a qui tam suit, notwith-

standing the Attorney General's objection, if the court finds that the

settlement is fair and reasonable. See United States ex rel. Killingsworth

v. Northrop Corp., 25 F.3d 715, 720-724 (9th Cir. 1994).

provided the person with an opportunity for a hearing on the

motion.” 31 U.S.C. 3730(e2)(A).°

If a qui tam action results in a monetary award, the re-

covery is divided between the government and the relator.

If the government takes control of the litigation, the relator

generally receivels] at least 15 percent but not more than

25 percent of the proceeds of the action or settlement of the

claim.” 31 U.S.C. 37 300d) Under certain circumstances

the relator’s share may be reduced to 10% or less of the total

recovery. Ibid. If the government declines to take control of

the litigation and the relator prosecutes the suit, the re-

lator’s share “shall be not less than 25 percent and not more

than 30 percent of the proceeds.” 31 U.S.C. 3730(d)(2).

2. The instant case involves a qui tam suit filed against

petitioner State of Vermont Agency of Natural Resources.

The relator, Jonathan Stevens (a respondent in this Court),

was an employee of petitioner at the time of the alleged FCA

violations. The complaint alleged that petitioner had sub-

mitted false claims to the United States Environmental!

Protection Agency (EPA) in connection with federal grant

programs administered by the EPA pursuant to, inter alia,

the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., and the

Safe Drinking Water Act, 42 U.S.C. 300f et seg. The grava-

5 Section 3730(c2)(A) entitles the relator to a hearing on the

government's motion to dismiss a qui tam suit, but it does not specify the

legal standard that the district court should apply in ruling on the relator’s

objection to such a motion. The Ninth Circuit has held that the govern-

ment may intervene and dismiss a qu: tam action, notwithstanding the

relator’s objection, if a rational relation exists between dismissal and

accomplishment of a valid government purpose. See United States ex rel

Sequoia Orange Co. v. Baird-Neece Packing Corp. 151 F.3d 1139, 1143-

1147 (1998), cert. denied, 119 S. Ct. 794 (1999). The court held, in parti-

cular, that the government may obtain dismissal of even a potentially

meritorious qui tam suit if it reasonably believes that dismissal would

serve a valid governmental interest, such as maintaining stability in a

particular industry. 151 F.3d at 1144-1146.

men of the suit was that petitioner had overstated the

amount of time spent by its employees on the federally-

funded projects, thereby inducing the EPA to pay grant

money to which petitioner was not entitled. See Pet. App. 5-

7; J.A. 33-41 (complaint).

As required by the FCA, see 31 U.S.C. 3730(b)(2), the

complaint in this case was filed in camera and under seal and

was not served upon petitioner. Pet. App. 7. The United

States declined to intervene to take over the action, and the

complaint was subsequently unsealed and served. /d. at 7-8.°

Petitioner moved to dismiss the action, arguing that (1) a

State or state instrumentality is not a “person” subject to

liability under the FCA, 31 U.S.C. 3729; and (2) qui tam suits

against state entities are barred by the Eleventh Amend-

ment. Pet. App. 8.

The district court denied the motion to dismiss. Pet. App.

86-87. The court held 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 qui tam action.” Id. at 86. The court also ob-

served, with respect to the issue of statutory construction,

that “it would be anomalous to acknowledge that a state is a

‘person’ within the meaning of the statute if it chooses to

bring a False Claims Act suit, but that the same state is not

a ‘person’ if named as a defendant.” Id. at 87.

3. Petitioner filed an interlocutory appeal, and the court

of appeals affirmed. Pet. App. 1-85."

The United States is a party in this Court, however, because it

intervened in the court of appeals pursuant to 28 U.S.C. 2403(a) to defend

the qui tam provisions of the FCA against petitioner's constitutional

challenge. See Pet. App. 9.

As the court of appeals observed, this Court has held that a

district court order denying a motion to dismiss based on a claim of

Eleventh Amendment immunity is immediately appealable. See Pet. App.

9 (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

a. The court of appeals first held that the Eleventh

Amendment does not bar a qui tam suit against a State or

state agency. Pet. App. 14-18. The court observed that

under established law, the Eleventh Amendment has no

application to suits by the United States. Id. at 15-16. The

court framed the relevant constitutional question as

“whether a qui tam suit under the FCA should be viewed

as a private action by an individual, and hence barred by

the Eleventh Amendment, or one brought by the United

States, and hence not barred.” Id. at 16. In light of It he

interests to be vindicated, in combination with the govern-

ment’s ability to control the conduct and duration of the qui

tam suit,” the court of appeals concluded that the Eleventh

Amendment does not bar qui tam actions against state de-

fendants. Ibid.

The court of appeals explained that in its view It he real

party in interest in a qui tam suit is the United States.” Pet.

App. 16. The court observed that

lalll of the acts that make a person liable under [31

U.S.C.] § 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—at

least 70%—of any recovery.

Ibid. The court also explained that the government pos-

sesses substantial control over qui tam litigation, since it

may intervene at the outset of the suit and retains signifi-

cant prerogatives even if it does not intervene. Id. at 17. “In

506 U.S. 139, 147 (1993)). The court of appeals concluded that it possessed

“pendent appellate jurisdiction” over the question “whether qui tam suits

against the States are authorized by the Act.” /d. at 19.

light of the fact that qui tam claims are designed to remedy

only wrongs done to the United States, and in light of the

substantial control that the government is entitled to exer-

cise over such suits,” the court held that a qui tam suit “is in

essence a suit by the United States and hence is not barred

by the Eleventh Amendment.” Id. at 18.

b. The court of appeals also held that petitioner is a

“person” subject to the liability provision of the FCA, 31

U.S.C. 3729. Pet. App. 19-30. The court held that the inter-

pretive question is not governed by any “plain statement”

rule, explaining that It he Act does not intrude into any

area of traditional state power. The goal of the statute is

simply to remedy and deter procurement of federal funds by

means of fraud. The States have no right or authority,

traditional or otherwise, to engage in such conduct.” Id. at

20-21. The court observed that “[wJhether the term ‘person’

when used in a federal statute includes a State cannot be

abstractly declared, but depends upon its legislative en-

vironment.” Id. at 21 (quoting Sims v. United States, 359

U.S. 108, 112 (1959)).

In the court of appeals’ view, several aspects of the FCA

and its legislative history supported the conclusion that

States are personls]“ subject to suit under the Act. See

Pet. App. 21-30. The court noted that States have histori-

cally been regarded as “person[s]” authorized to file qui tam

actions under 31 U.S.C. 3730(b)(1), see Pet. App. 21-23, and it

found no basis for inferring that Congress intended the word

to have a different meaning in Section 3729(a)’s liability

provision, see id. at 23-24. The court also explained that the

FCA has consistently been given a broad construction as

covering all frauds upon the United States, including frauds

perpetrated by state officials, see id. at 25-27, and that the

Senate Report accompanying the 1986 FCA amendments

had expressed Congress’s understanding that the term

“person” as used in the Act includes States, see id. at 27-28.

The court of appeals also pointed out that the word “person”

is defined to include States for purposes of 31 U.S.C. 3733,

which governs the issuance of CIDs. See Pet. App. 28-29."

Finally, the court of appeals rejected petitioner’s conten-

tion that the FCA should be construed not to impose liability

upon the States on the ground that the remedies available

under the Act are “punitive” in nature. See Pet. App. 28-29.

The court explained that the double-damages remedy pro-

vided by the FCA until its amendment in 1986

hald] been held not to be punitive but remedial, multiple

damages being recoverable in order “to make sure

that the government would be made completely whole,”

United States ex rel. Marcus v. Hess, 317 U.S. at 551-52,

in light of the need “to compensate the Government com-

pletely for the costs, delays, and inconveniences occa-

sioned by fraudulent claims,” United States v. Bornstein,

423 U.S. at 315.

Id. at 29. The court saw “no impediment to Congress’s ap-

plying this remedial structure against States who, in partici-

pating in federally funded programs, knowingly present

fraudulent claims to the government.” /d. at 29-30.

c. Senior District Judge Weinstein, sitting by designa-

tion on the court of appeals, dissented. The dissenting judge

concluded that the suit was barred by the Eleventh Amend-

ment. Pet. App. 31-85.

In discussing the CID provision, the court of appeals noted (see

Pet. App. 28) that the term “false claims law investigation” is defined by

31 U.S.C. 3733(1(2) to mean “any inquiry conducted . for the purpose

of ascertaining whether any person is engaged in any violation of a false

claims law.” For purposes of Section 3733 generally, including Section

Nag), the term “person” is defined to include the States. See Pet.

App. 28 (citing 31 U.S.C. 3733(/)(4)). The court of appeals observed that

Iplresumably, Congress would not have authorized such an investigation

into whether States were engaged in violating the FCA unless States

were among the ‘persons’ who are suable under the Act.” Id. at 28.

SUMMARY OF ARGUMENT

I. A State or state agency is a “person” subject to po-

tential FCA liability under 31 U.S.C. 372%a). A contrary

reading would not only preclude qui tam suits against state

defendants, but would also foreclose the Attorney General

from initiating FCA actions against state entities.

A. In construing statutes that define the relationship

between regulated parties and the United States, this Court

has repeatedly held that the term “person,” or similarly

general language, may appropriately be read to include the

States, even in the absence of an express statutory directive

to that effect. Whatever the constitutional status of qui tam

suits against state defendants, FCA suits initiated by the

Attorney General are not subject to any colorable Eleventh

Amendment objection. The term “person” in the Act’s

liability provision, 31 U.S.C. 3729a), therefore should not be

given an artificially narrow construction simply because in-

clusion of States as potential defendants may create a

substantial constitutional issue in qui tam litigation con-

ducted by private relators.

B. The larger statutory context strongly suggests that a

State or state agency is a “person” subject to potential FCA

liability. This Court has consistently understood the FCA to

establish a comprehensive remedy for fraud against the

United States. Given the magnitude of federal financial

assistance to States, it would be anomalous to exclude the

States from the Act’s coverage, particularly since the Act’s

prohibition of false or fraudulent claims does not impinge on

any traditional state prerogative.

C. The FCA’s other uses of the word “person” confirm

Congress’s intent to subject the States to FCA liability. For

purposes of 31 U.S.C. 3733, the term “person” is defined to

include States. 31 U.S.C. 3733(/)(4). Section 3733 uses the

word “person” to describe both the class of entities to whom

civil investigative demands may be issued, and the class of

entities who may be “engaged in al] violation of a false claims

law.“ 31 U.S.C. 87380002). The latter use of the word pre-

supposes that a State is subject to FCA liability if it know-

ingly submits a false claim. The Act also uses the word

“person” to describe the class of potential relators. States

have filed qui tam actions in the past; their right to do so has

not been questioned; and Congress in enacting the 1986 FCA

amendments assumed that a State is a proper relator. Be-

cause a word is generally presumed to carry a consistent

meaning when it appears in different sections of the same

statute, Congress’s use of the word “person” to describe

both relators and FCA defendants reinforces the view that

a State or state agency is subject to the Act’s liability pro-

vision.

D. The legislative history of the 1986 FCA amendments

also demonstrates Congress’s intent that States would be

subject to the Act. The Senate Report accompanying those

amendments expressed the understanding that States were

covered under pre-existing law. Although Congress en-

gaged in a comprehensive review of the Act and amended it

in numerous respects, the Act as amended continues to use

the word “person” to describe the class of entities subject to

potential liability. In light of Congress’s expressed under-

standing that the word in this context includes the States, its

continued use of the term to describe potential defendants is

highly probative evidence that Congress intended that the

States be subject to the Act’s liability provisions.

E. There is nothing anomalous or improper about sub-

jecting state entities to the remedies (three times the

amount of the government’s damages, plus a civil penalty of

between $5000 and $10,000) provided by the FCA. This

Court has squarely held that the FCA remedies in effect

prior to 1986—double damages plus a $2000 civil penalty—

were intended to serve predominantly compensatory pur-

poses. There is no reason to suppose that Congress in 1986

sought fundamentally to transform the nature of the re-

medies available under the Act. The Court has also recog-

nized, in discussing the relief available under the antitrust

laws, that while treble damages remedies serve in part to

punish violators, they further substantial compensatory and

deterrent purposes as well. Finally, common law and/or

administrative remedies would consistently fail to make the

government whole, since they would not compensate the

United States for its costs of investigation and suit. There is

no reason that the federal rather than the state government

should bear that loss in a case where the State has know-

ingly submitted a false claim.

II. In ratifying the Constitution, the States consented to

suits brought by the federal government. While a qui tam

suit is not literally a suit brought by a federal officer, it is

properly treated as the equivalent of such a suit for purposes

of Eleventh Amendment immunity. A qui tam suit is

brought to redress an injury to the United States; the

monetary recovery goes largely to the United States; and

the suit may not go forward over the objection of the United

States. Because a qui tam action under the FCA vindicates

the proprietary interests of the federal government, and is

subject to significant control by the United States, it is not

barred by the Eleventh Amendment.

A. At (and before) the Constitution was ratified, the qui

tam suit was a well-established mechanism for collecting

obligations owed to the government. A qui tam suit under

the FCA is an unusual hybrid having significant characteris-

tics of both a private and a public action. The relator (like

the typical plaintiff in private civil litigation) has a personal

financial stake in the suit, and the premise of the Act is that

he will seek to further that private interest. On the other

hand, the gravamen of a qui tam suit is an allegation of

wrong done to the federal government (rather than to the

relator personally), and the bulk of any monetary recovery

goes to the United States. Thus, while a qui tam relator pos-

sesses a personal stake in the outcome of his suit, Congress

oF ee

employed the qui tam mechanism to further the important

public interest in redressing and deterring acts of fraud

against the government.

The Property Clause of the Constitution, Art. IV, § 3, Cl.

2, vests Congress with broad authority to control and dis-

pose of the property of the United States. A bar on qui tam

suits against state defendants would impair Congress’s

exercise of that authority by disabling it from using what it

believed to be the most efficacious way of protecting the

federal government from fraudulent claims. Moreover, the

United States’ chose in action against a State or state agency

that has submitted a false claim is itself a species of property

that may, under ordinary principles of property law, be

assigned to a private party. The qui tam mechanism is in

practical effect a partial assignment of that chose in action

to the private party who first files suit. If the Eleventh

Amendment is construed to bar qui tam suits against state

defendants, then Congress is effectively precluded from as-

signing the government’s chose in action, in derogation of

Congress’s authority under Article IV to dispose of property

belonging to the United States.

B. Even where the government initially declines to inter-

vene to take over the conduct of a qui tam action, it retains

significant incidents of control over such suits. Because the

relator cannot proceed over the objection of the Attorney

General, the dissenting judge in the court of appeals was

mistaken in asserting that a qui tam suit is insulated from

the judgment of politically accountable officials.

C. In a variety of contexts, this Court has held that

application of state sovereign immunity principles turns on

the nature of the interests affected by a particular suit or

category of suits. Thus, the determination whether a suit is

one “against one of the United States” depends not simply

on the identity of the nominal defendant, but on the suit’s

likely practical effects upon the State. The Court has em-

ployed a similar “real party in interest” test to decide

whether a State is a real or merely a nominal plaintiff in a

suit brought against another State. The Court has also held

that “Ex parte Young” suits may be brought against in-

dividual state officers, notwithstanding the acknowledged

impact of such suits upon the State itself, because they play

a crucial role in ensuring the supremacy of federal law.

Similarly here, the gravamen of an FCA suit is an allegation

of wrong done to the United States as a corporate entity, the

federal government is the principal beneficiary of any suc-

cessful action, and the government retains ultimate control

over whether or not the suit will proceed. The suit therefore

retains its fundamental public character regardless of

whether it is brought by the government or by a qui tam re-

lator.

ARGUMENT

I. PETITIONER IS A “PERSON” SUBJECT TO LI-

ABILITY UNDER THE FCA

The FCA imposes liability on any “person” who engages

in specified fraudulent or deceptive practices involving the

funds or other property of the United States. 31 U.S.C.

3729(a). That liability may be enforced through any one of

three basic mechanisms. First, the Attorney General may

bring suit directly against a “person” she believes to be in

violation of the Act. 31 U.S.C. 3730(a). Second, the govern-

ment (through the Attorney General) may intervene to take

over the conduct of a qui tam suit. 31 U.S.C. 3730(b)(4)(A)

and (c)(1). Finally, if the government declines to intervene,

the relator “shall have the right to conduct the action.” 31

U.S.C. 3730(b)(4)(B).

Relying on various canons of construction largely devel-

oped in the context of private suits, petitioner argues (see

Br. 12-17) that a State or state agency may not be treated as

a “person” subject to potential liability under the FCA un-

less Congress has unequivocally manifested that intent.

Petitioner’s argument in that regard focuses almost exclu-

sively on the dangers to federalism ostensibly posed by qui

tam suits against state defendants. The practical conse-

quence of petitioner’s reading of the word “person,” how-

ever, is that none of the Act’s enforcement mechanisms will

be available against state entities that knowingly submit

false claims to the federal government. Although peti-

tioner’s objections are directed almost exclusively to the

FCA’s qui tam provisions, petitioner would “save” the

statute by disabling the Attorney General from enforcing

the Act against entities that receive a substantial (and rap-

idly growing) share of federal outlays. Such a construction of

the statute would be inconsistent with the text, the history,

and the purposes of the FCA, which is “used as the primary

vehicle by the Government for recouping losses suffered

through fraud,” H.R. Rep. No. 660, 99th Cong., 2d Sess. 18

(1986) (1986 House Report). Nothing in this Court’s juris-

prudence supports that anomalous result.“

This case involves petitioner’s interlocutory appeal from the

district court’s denial of its motion to dismiss. See Pet. App. 8-9. This

Court has held that the denial of a motion to dismiss on Eleventh

Amendment grounds is immediately appealable under the collateral order

doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 144-145 (1993). In the instant case, the Second Circuit

held that it possessed “pendent appellate jurisdiction” over the question

whether qui tam suits against States are authorized by the FCA. Pet.

App. 19; accord United States ex rel. Long v. SCS Business & Technical

Inst., Inc., 173 F.3d 870, 873, supp. op., 173 F.3d 890 (D.C. Cir. 1999),

petition for cert. pending, No. 99-213 (filed Aug. 2, 1999).

This Court has generally disapproved the concept of pendent appellate

jurisdiction. See Swint v. Chambers County Comm 'n. 514 U.S. 35, 49-50

(1995). The Court has suggested, however, that the exercise of such

jurisdiction might be proper under some circumstances, as where the

appealable and non-appealable rulings are “inextricably intertwined,” or

where review of the “pendent” holding is “necessary to ensure meaningful

review of the” ruling that is independently appealable. Id. at 50-51. Even

assuming that the district court’s denial of petitioner’s motion to dismiss

on statutory grounds is not independently subject to immediate appellate

A. In Statutes That Define The Relationship Between

Regulated Parties And The United States, The Word

“Person” Has Generally Been Construed To Include

The States

Petitioner contends (Br. 10-12) that the word “person”

presumptively excludes the States and their agencies, and

that a clear statement of congressional intent is required to

rebut that presumption."” That claim is incorrect.

In cases involving private suits against state defendants,

this Court has stated that “in common usage, the term

‘person’ does not include the sovereign, and statutes em-

ploying the word are ordinarily construed to exclude it.”

Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989)

(brackets omitted); accord, Wilson v. Omaha Tribe, 442 U.S.

653, 667 (1979). In construing statutes that define the re-

lationship between regulated parties and the United States,

however, the Court has repeatedly held that the term

“person,” or similarly general language, may appropriately

be read to include the States, even in the absence of an

express statutory directive to that effect.

review, we believe that the statutory issue is logically antecedent to the

Eleventh Amendment question, and that the court of appeals’ exercise of

pendent appellate jurisdiction was therefore proper. Indeed, it would

contravene accepted principles of constitutional adjudication for this

Court to determine whether the Eleventh Amendment bars the instant

qui tam action without first deciding whether Congress has authorized

such suits to be filed against state entities.

10 Petitioner also contends (Br. 10-12) that the “plain language” of

Section 3729(a) compels the conclusion that States are not covered. Peti-

tioner thus appears to suggest that the word “person” cannot, as a matter

of law, include a State. That position is directly contrary to this Court’s

precedents. See, e. g., Sims v. United States, 359 U.S. 108, 112 (1959)

(“Whether the term ‘person’ when used in a federal statute includes a

State cannot be abstractly declared, but depends upon its legislative

environment.”); Georgia v. Evans, 316 U.S. 159, 161 (1942); page 19, infra.

Thus, in California v. United States, 320 U.S. 577, 585

(1944), the Court held that a State in its operation of

wharves and piers is a “person” subject to the regulatory

authority of the United States Maritime Commission under

the Shipping Act, 1916. The Court explained that “with so

large a portion of the nation’s dock facilities * * * owned or

controlled by public instrumentalities, it would have de-

feated the very purpose for which Congress framed the

scheme for regulating waterfront terminals to exempt those

operated by governmental agencies.” Id. at 585-586. In Ohio

v. Helvering, 292 U.S. 360, 367-371 (1934), the Court held

that a State was subject to a federal tax imposed on “[e]very

person” engaged in the sale of alcoholic beverages. And in

United States v. California, 297 U.S. 175, 183-187 (1936), the

Court held that a State in operating a railroad is a “common

carrier” subject to an action for penalties brought by the

United States under the Safety Appliance Act. The Court

explained that

the presumption [against construing general language

to include the enacting sovereign] is an aid to consistent

construction of statutes of the enacting sovereign when

their purpose is in doubt, but it does not require that the

aim of a statute fairly to be inferred be disregarded

because not explicitly stated. We can perceive no reason

for extending it so as to exempt a business carried on by

a state from the otherwise applicable provisions of an act

of Congress, all-embracing in scope and national in its

purpose, which is as capable of being obstructed by state

as by individual action.

Id. at 186 (citation omitted). Indeed, petitioner has identi-

fied no case involving a dispute between the United States

and a State in which the word “person” has been held to

exclude the States.

The foregoing lines of authority are easily harmonized. In

light of “the constitutional role of the States as sovereign

entities,” Alden v. Maine, 119 S. Ct. 2240, 2247 (1999), statu-

tory provisions that primarily serve to define the obligations

that private parties owe to each other—and, in particular,

provisions that define the circumstances under which private

suits can go forward—cannot readily be assumed to apply to

the States. In Will, for example, the Court emphasized that

to construe the word “person” in 42 U.S.C. 1983 to include a

State or state agency would effectively divest the States of

their traditional immunity from private suits. See 491 U.S.

at 66-67 & nn.6-7, 70." In its relations with the national gov-

ernment, however, a State is not “the sovereign.” This

Court has

recognized that the Constitution presents no barrier to

lawsuits brought by the United States against a State.

For purposes of such lawsuits, States are naturally just

like “any nongovernmental entity”; there are no special

rules dictating when they may be sued by the Federal

Government, nor is there a stringent interpretive prin-

ciple guiding construction of statutes that appear to

authorize such suits. Indeed, this Court has gone so far

as to hold that no explicit statutory authorization is nec-

essary before the Federal Government may sue a State.

See United States v. California, 332 U.S. 19, 26-28

(1947).

The Court in Will made clear that its construction of the word

“person” as excluding state entities applieſd] only to States or govern-

mental entities that are considered ‘arms of the State’ for Eleventh

Amendment purposes,” and did not extend to municipalities (which have

no Eleventh Amendment immunity). 491 U.S. at 70. The Court also

tracked Eleventh Amendment jurisprudence in holding that a state officer

sued in his official capacity is a “person” when sued for prospective

injunctive relief, but is not a “person” when sued for retrospective mone-

tary relief. Id. at 70-71 & n.10; see pages 43-44, 45-46, infra,

Pennsylvania v. Union Gas Co., 491 U.S. 1, 11-12 (1989); ef.

North Dakota v. Block, 461 U.S. 273, 288-290 (1983) (noting

general rule of construction that statutes of limitation do not

apply to States absent a clear indication that States are

covered, but holding that the rule is inapplicable where a

State attempts to sue the United States).

As we explain in Part II, infra, the Eleventh Amendment

does not bar qui tam suits under the FCA against States or

state agencies because such actions serve to redress legal

wrongs done to the federal government itself, and because

qui tam actions are subject to significant control by the

Attorney General. Insofar as the question of statutory con-

struction is concerned, however, the crucial point is that,

whatever the constitutional status of qui tam suits against

state defendants, FCA suits initiated by the Attorney

General pursuant to Section 3730(a) are not subject to any

colorable Eleventh Amendment objection. See, e.g., Alden,

119 S. Ct. at 2267 (“In ratifying the Constitution, the States

consented to suits brought by other States or by the Federal

Government.”); West Virginia v. United States, 479 U.S. 305,

311 (1987) (“States have no sovereign immunity as against

the Federal Government.”). The term “person” in the Act’s

liability provision, 31 U.S.C. 3729(a), therefore should not be

given an artificially narrow construction simply because in-

clusion of States as potential defendants may create a sub-

stantial constitutional issue in qui tam litigation conducted

by private relators.”

1 The Court has since overruled Union Gas's holding that Congress

in the exercise of its Commerce Clause authority may abrogate the States

Eleventh Amendment immunity. See Seminole Tribe v. Florida, 517 U.S.

44, 63-73 (1996). Neither Seminole Tribe nor any other decision of this

Court, however, casts doubt on the principle of statutory construction set

forth in the text. ae

18 Where the government intervenes in a qui tam action to over

the conduct of the litigation, the suit is not meaningfully different, for

Eleventh Amendment purposes, from a suit initially brought by the

The Court made a quite similar point in United States ex

rel. Marcus v. Hess, 317 U.S. 537 (1943). That case involved

a qui tam suit against electrical contractors who had en-

gaged in a bid-rigging scheme; the defendants’ contracts

were with local governmental units, but a large portion of

their pay came from the United States. Id. at 539 & n. I. The

court of appeals held that the FCA’s liability provision

should be narrowly construed to exclude persons having no

direct contractual relationship with the federal government,

on the ground that qui tam suits had traditionally been

regarded with disfavor. See id. at 540-541.

United States. The filing of a qui tam complaint carries no immediate

consequence for the named defendant(s). To the contrary, the FCA speci-

fically provides that “(t]he complaint shall be filed in camera, shall remain

under seal for at least 60 days, and shall not be served on the defendant

until the court so orders.” 31 U.S.C. 3730(b)(2). If the United States

intervenes to take over the litigation during the period when the com-

plaint remains under seal, its intervention effectively cures any Eleventh

Amendment defect that might otherwise exist. The relator’s continued

participation as a party after the United States’ intervention (see 31

U.S.C. 3730(¢)(1)) also creates no constitutional difficulty, at least so long

as the relator raises no claims distinct from those of the government. Cf.

Arizona v. California, 460 U.S. 605, 614 (1983) (Indian Tribes were

properly allowed to intervene in suit brought by the United States against

a State; because it he Tribes dlid] not seek to bring new claims or issues

against the States * * [the Court's] judicial power over the

controversy lwals not enlarged by granting leave to intervene, and the

States’ sovereign immunity protected by the Eleventh Amendment [wa]s

not compromised.”).

Unpublished statistics maintained by the Civil Division of the

Department of Justice indicate that total civil fraud recoveries between

October 1986 and September 1999 have been approximately $6 billion, of

which just under half represents recoveries in gui tam suits. Of the

government's total qui tam recoveries, approximately $224 million came in

suits conducted to their conclusion by private relators; the remainder was

derived from cases where the government intervened to take over the

prosecution of the suit.

This Court rejected that approach. It first questioned the

contention that qui tam suits are disfavored, noting that

such actions “have been frequently permitted by legislative

action, and have not been without defense by the courts.”

317 U.S. at 541. It also explained, however, that the court of

appeals’

interpretation of “utmost strictness” narrows not only

the qui tam aspect of the Act, but also the criminal

provisions. The decision below treats the language of

the FCA’s liability provision] in such fashion that no

criminal proceedings could be brought against the re-

spondents, a result to which the policy on qui tam actions

is immaterial even if it exists or could properly be ap-

plied. This “qui tam policy” could not be used to detract

from the meaning of the language in the criminal section;

and we cannot say that the same substantive language

has one meaning if criminal prosecutions are brought by

public officials and quite a different meaning where the

same language is invoked by an informer.

Congress has power to choose this method [i- e.,

criminal prosecutions] to protect the government from

burdens fraudulently imposed upon it; to nullify the

criminal statute because of dislike of the independent

informer sections would be to exercise a veto power

which is not ours.

Id. at 541-542. Essentially the same analysis applies here.

Insofar as petitioner’s statutory argument rests on objec-

tions that are specific to qui tam suits, those objections

provide no basis for construing the FCA’s liability provision

in a manner that would preclude the Attorney General from

seeking redress under the Act for fraud committed by States

and state agencies.

For the reasons stated above, the supposed proliferation of qui

tam suits against state defendants would provide no basis for construing

B. The Subject Matter Of The FCA Strongly Suggests

That States And State Agencies Are Subject To

Potential Liability Under The Act

The larger statutory context strongly suggests that a

State or state agency is a “person” subject to potential FCA

liability. The Act is intended to supply a comprehensive

remedy for fraud against the United States, and the sub-

mission of false claims by state officials causes precisely the

same harms as do other fraudulent efforts to obtain federal

money or property. “In the various contexts in which

questions of the proper construction of the [FCA] have been

presented, the Court has consistently refused to accept a

rigid, restrictive reading.” United States v. Neifert-White

Co., 390 U.S. 228, 232 (1968). Rather, the Court has con-

strued the Act to extend to “all fraudulent attempts to cause

the Government to pay out sums of money.” Id. at 233; see

S. Rep. No. 345, 99th Cong., 2d Sess. 9 (1986) (1986 Senate

Report) (“The False Claims Act is intended to reach all

fraudulent attempts to cause the Government to pay out

sums of money or to deliver property or services.”).

Over half a century ago, this Court observed that “[w)hile

at the time of the passage of the original 1863 Act, federal

aid to states consisted primarily of land grants, in sub-

sequent years the state aid program has grown so that in

1941 approximately 10% of all federal money was distributed

in this form. These funds are as much in need for protection

from fraudulent claims as any other federal money.”

Marcus, 317 U.S. at 544. In more recent years, “States have

received a significant and increasing amount of federal

funding: federal grants to state and local governments more

Section 372%a) in a manner that would preclude the Attorney General

from bringing FCA actions against state defendants. It nevertheless

bears noting that petitioner's citation of six cases decided within the past

decade hardly establishes that “the number of qui tam suits brought

against States has mushroomed.” Pet. Br. 14 n.4.

than doubled from $108 billion in 1987 to $228 billion

1996.” United States ex rel. Zissler v. Regents of the Bob.

of Minn., 154 F.3d 870, 874 (8th Cir. 1998). In light of the

increased (and increasing) magnitude of federal financial

assistance to States, it would be anomalous to exclude the

States from coverage by “the Government's primary litiga-

tive tool for combatting fraud.” 1986 Senate Report 2. Cf.

United States v. California, 297 U.S. 175, 186 (1936) (finding

“no reason * * * to exempt a business carried on by a state

from the otherwise applicable provisions of an act of Con-

—— 223 12 and national in its purpose,

as ca of being obs

* 1 ing tructed by state as by

The requirement that States refrain from submitting

claims to the United States does not impinge on ue

ereign prerogative or “upset the usual constitutional balance

of federal and state powers.” Gregory v. Ashcroft, 501 U.S.

452, 460 (1991). As the court of appeals correctly recognized

the FCA “does not intrude into any area of traditional state

power.” Pet. App. 21. The Act serves “to remedy and deter

procurement of federal funds by means of fraud,” and It Ihe

States have no right or authority, traditional or otherwise, to

engage in such conduct.” Jbid. Petitioner chose to accept

the benefits of a federal grant program, and it is neither

anomalous nor surprising that petitioner—like other federal

fund recipients—is subject to the substantive and remedial

provisions designed to ensure that it is entitled to the money

and that the funds are used for their intended purpose.

expression of congressional intent, it would not construe 7

Discrimination in Employment Act to invalidate a Missouri constitutional

provision requiring state judges to retire at age 70. The Court explained

that the establishment of qualifications for state judges “is a decision of

the most fundamental sort for a sovereign entity. Through the structure

of its government, and the character of those who exercise government

authority, a State defines itself as a sovereign.” 501 U.S. at 460. It

C. The FCA'’s Other Uses Of The Word “Person” Confirm

That States And Their Agencies Are Subject To Po-

tential FCA Liability

1. Congress’s intent to subject States to the FCA’s

liability provisions is confirmed by 31 U.S.C. 3733, which

authorizes the Attorney General to issue civil investigative

demands (CIDs) compelling the production of evidence. For

purposes of Section 3733, “the term ‘person’ means any

natural person, partnership, corporation, association, or

other legal entity, including any State or political subdivision

of a State.” 31 U.S.C. 3733(/)(4). Section 3733 uses the word

“person” in two distinct contexts. First, Section 3733 pro-

vides that a CID may be issued “[wJhenever the Attorney

General has reason to believe that any person may be in

possession, custody, or control of any documentary material

or information relevant to a false claims law investigation.”

31 U.S.C. 3733(a)(1) (emphasis added). Second, Section 3733

defines the term “false claims law investigation” to mean

“any inquiry conducted by any false claims law investigator

for the purpose of ascertaining whether any person is or has

been engaged in any violation of a false claims law.” 31

U.S.C. 3733(1)(2) (emphasis added).

Thus, Section 3733’s use of the word “person” is not

limited to describing the class of entities to whom CIDs may

be issued. Rather, Section 3733(/)(2) uses the word “person”

concluded on that basis that le longressional interference with this

decision of the people of Missouri * * * would upset the usual consti-

tutional balance of federal and state powers.” Ibid.

Unlike the State in Gregory, petitioner does not contend that the

substantive prohibition contained in the FCA—i.e., the Act’s ban on the

knowing submission of false claims to the federal government—could

impair a State’s exercise of sovereignty. Rather, petitioner argues (Br. 13-

15) that application of the FCA to the States would alter the federal-state

balance because the Act (1) provides for enforcement by private qui tam

suits and (2) contains remedial provisions that are “punitive” in nature.

We address those contentions at pages 18-23 supra, and 30-33, infra.

—specifically defined to include the States—to describe the

class of entities who may be “engaged in al] violation of a

false claims law.” That use of the word presupposes that

States are subject to potential FCA liability under Section

37290). See Pet. App. 28 (“Presumably, Congress would not

have authorized such an investigation into whether States

were engaged in violating the FCA unless States were

among the ‘persons’ who are suable under the Act.”).

2. Both before and after the 1986 amendments, the FCA

has also used the word “person” to describe the class of

potential relators. See 31 U.S.C. 3730(b)(1) (“A person may

bring a civil action for a violation of section 3729 for the

person and for the United States Government.”). As the

court of appeals explained (Pet. App. 22-23), States have

filed qui tam actions in the past; their right to do so has not

been questioned; and Congress in enacting the 1986 FCA

amendments assumed that a State is a proper relator.”

16 The 1986 Senate Report discussed the case of United States ex rel.

State of Wisconsin v. Dean, 729 F. 2d 1100 (7th Cir. 1984). See 1986 Senate

Report 12-13. The court in Dean construed the pre-1986 version of the

FCA to preclude a qui tam action based on information in the federal

government’s possession, even where the relevant information had been

brought to the government's attention by the relator (the State of

Wisconsin) itself. The National Association of Attorneys General (NAAG)

shortly thereafter urged Congress to amend the FCA, arguing that “to

prohibit sovereign states from becoming qui tam plaintiffs because the

U.S. Government was in possession of information provided to it by the

States and declines to intercede in the State’s lawsuit, unnecessarily

inhibits the detection and prosecution of fraud on the Government.” 1986

Senate Report 13 (quoting NAAG resolution). The 1986 Senate Report

also observed that the federal government had filed a brief in Dean

“indicating its belief that Wisconsin was a proper relator.” Jbid.; see

Dean, 729 F. 2d at 1102-1103 n.2 (noting government filing in the district

court).

Congress directly addressed the Dean decision in the 1986 FCA

amendments by enacting 31 U.S.C. 3730(e)(4). Section 3730(e)(4) modified

the prior jurisdictional barrier by changing its focus from government

Because the “normal rule of statutory construction [is] that

identical words used in different parts of the same act are

intended to have the same meaning,” Commissioner v.

Lundy, 516 U.S. 235, 250 (1996), Congress’s use of the same

word to describe both relators and FCA defendants

reinforces the view that a State or state agency is subject to

the Act’s liability provision.

D. The Legislative History Of The 1986 FCA Amend-

ments Demonstrates Congress’s Intent That States

Would Be Subject To The Act

The FCA was comprehensively amended in 1986 (see

False Claims Amendments Act of 1986, Pub. L. No. 99-562,

100 Stat. 3153) in order “to strengthen and clarify the

government's ability to detect and prosecute civil fraud and

to recoup damages suffered by the government as a result of

such fraud.” 1986 House Report 16. The Senate Report

accompanying the 1986 legislation expressed the under-

standing, with respect to the pre- amendment version of the

Act, that “(t]he term ‘person’ is used in its broad sense to

include partnerships, associations, and corporations

as well as States and political subdivisions thereof.” 1986

Senate Report 8. As amended in 1986, the FCA continues to

use the word “person” to describe the class of entities

subject to potential liability. 31 U.S.C. 3729(a); see Pub. L.

No. 99-562, § 2, 100 Stat. 3153. In light of Congress’s ex-

pressed understanding that the word in this context includes

the States, its continued use of the term to describe potential

defendants is highly probative evidence that Congress

possession to “public disclosure” of the relevant information, and by

adding an “original source” exception to the jurisdictional bar. Although

Congress substantially rewrote the FCA’s qui tam provisions, the Act as

amended in 1986 continues to use the word “person” to describe the class

of potential relators—a class that has long been assumed to include the

States.

— ——

intended that the States be subject to the Act’s liability

provisions.

Petitioner contends (Br. 25-26) that the 1986 Senate

Report is “entitled to no weight” because “(i]t is simply an

attempt by committee members of a later Congress to

expound on the meaning of a statute passed by another Con-

gress some 123 years earlier.” Contrary to petitioner’s sug-

gestion, however, the disputed provision of current law—i.e.,

the phrase “[aJny person who” in Section 3729(a)—was

enacted in 1986, not in 1863. Section 2 of the 1986 FCA

amendments began:

Section 3729 of title 31, United States Code, is

(1) by striking the matter preceding paragraph (1)

and inserting the following:

“(a) LIABILITY FOR CERTAIN ACTS.—Any person

who—”

§ 2, 100 Stat. 3153. Thus, the word “person” in current Sec-

tion 3729(a) is the product of the 1986 legislation, not a rem-

nant of prior law.

The 1986 Congress’s understanding of the word “person”

is therefore directly relevant to the proper construction of

the present statutory language. The 1986 Senate Report—

the authoritative source for finding the Legislature’s

intent, see Garcia v. United States, 469 U.S. 70, 76 (1983)—

expressed a clear understanding that the Act in its then-

17 The fact that the word “person” had also been used in earlier

versions of the FCA does not alter the fact that in construing Section

3729(a) in its present form, the relevant intent is that of the 1986

Congress. Compare United States v. Sheffield Pourd of Comm'rs, 435

U.S. 110, 134 (1978) (“When a Congress th°* __-enacts a statute voices its

approval of an administrative or other interpretation thereof, Congress is

treated as having adopted that interpretation, and this Court is bound

thereby.”).

30 Siem

current form included States within the class of “persons”

subject to potential liability for the submission of false

claims. Congress then amended the Act in numerous re-

spects but continued to use the term “person” to describe

the class of potential defendants. That sequence of events

ean only be understood as an expression of congressional

intent to include States within the class of potential de-

fendants.“

E. The Remedies Provided By The FCA Are Not

Presumptively Inapplicable To Governmental Entities

Petitioner contends that the remedies provided by the

FCA (three times the amount of the government's damages,

plus a civil penalty of between $5000 and $10,000) are

“inherently punitive in nature“ (Pet. Br. 20-21) and are

therefore presumptively inapplicable to governmental

entities (id. at 21-22). That argument is incorrect.

1. This Court has squarely held that the FCA remedies

in effect prior to 1986—double damages plus a $2000 civil

penalty—were intended to serve predominantly compensa-

tory purposes. See United States v. Bornstein, 423 U.S. 303,

315 (1976) (FCA’s remedial provisions reflect “the congres-

sional judgment that double damages are necessary to com-

pensate the Government completely for the costs, delays,

and inconveniences occasioned by fraudulent claims”);

Murcus, 317 U.S. at 551-552 (“We think the chief purpose of

18 This is so whether or not Congress correctly interpreted pre-

existing law. There may be instances in which Congress’s overriding

intent is to maintain in place the current rules—regardless of precisely

what those rules are—on the theory that it is sometimes more important

that legal questions be settled than that they be settled right. No such

intent can plausibly be ascribed, however, to the Congress that enacted

the 1986 FCA amendments, which were preceded by comprehensive

scrutiny of all aspects of the FCA, and which effected a thoroughgoing

revision of the Act. See 1986 House Report 29 (explaining that the 1986

amendments would accomplish “a complete rewrite of Section 3729 of title

31, United States Code”).

the statutes here was to provide for restitution to the

government of money taken from it by fraud, and that the

device of double damages plus a specific sum was chosen to

make sure that the government would be made completely

whole.”); see also United States v. Halper, 490 U.S. 435,

446 (1989) (in order to obtain “rough remedial justice,” the

government “may demand compensation according to some-

what imprecise formulas, such as reasonable liquidated

damages or a fixed sum plus double damages”). Nothing in

the legislative history of the 1986 FCA amendments sug-

gests that Congress sought fundamentally to transform the

nature of the remedies available under the Act—much less

that it contemplated that the increase would have the effect

of excluding governmental bodies from the Act’s coverage.

2. This Court has rejected efforts to equate statutory

treble damages provisions with a common law punitive dam-

ages remedy. In American Society of Mechanical Engineers,

Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982), the Court

concluded that its prior decision in Lake Shore & Mich. S.

Ry. v. Prentice, 147 U.S. 101 (1893), which held that a

principal cannot be found liable for punitive damages based

on the conduct of an agent acting with apparent authority,

should not be extended to a claim for treble damages under

the antitrust laws. The Court explained:

It is true that antitrust treble damages were designed in

part to punish past violations of the antitrust laws. But

19 The 1986 House Report recommended that the damages and civil

penalties available under the Act be increased “in order that the False

Claims Act penalties will have a strong deterrent effect; will make the

Government whole for its losses; and to update the penalty enacted in 1863

to reflect the passage of time and the effects of inflation.” 1986 House

Report 20. With respect to the civil penalty provision in particular, the

Report stated that the then-existing penalty of $2000 per violation was

“outdated” because it had not been changed since 1863 and “the buying

power of $2,000 in 1863 would be close to $18,000” in 1986. Id. at 17.

treble damages were also designed to deter future anti-

trust violations. Moreover, the antitrust private action

was created primarily as a remedy for the victims of

antitrust violations. Treble damages make the remedy

meaningful by counterbalancing the difficulty of main-

taining a private suit under the antitrust laws. Since

treble damages serve as a means of deterring antitrust

violations and of compensating victims, it is in accord

with both the purposes of the antitrust laws and prin-

ciples of agency law to hold [the defendant] liable for the

acts of agents committed with apparent authority. See

Restatement § 217C, Comment c, p. 474 (rule limiting

principal’s liability for punitive damages does not apply

to special statutes giving triple damages).

456 U.S. at 575-576 (citations and internal quotation marks

omitted). See also Brunswick Corp. v. Pueblo Bowl-O-Mat,

Inc., 429 U.S. 477, 485-486 (1977) (although treble damages

under the antitrust laws “play an important role in penaliz-

ing wrongdoers and deterring wrongdoing, * * * [ijt

nevertheless is true that the treble-damages provision,

which makes awards available only to injured parties, and

measures the awards by a multiple of the injury actually

proved, is designed primarily as a remedy”).”

3. In arguing that the term “person” should be construed

to exclude the States, 1 itioner seeks to escape even the

component of its potential FCA liability (i.e., the pre-1986

20 The Court has characterized antitrust treble damages awards as

serving important compensatory purposes despite the fact that the

antitrust laws provide for a separate award of attorneys’ fees. 15 U.S.C.

15(a); see Brunswick, 429 U.S. at 481-482. Because the United States

cannot separately recover attorneys’ fees or its costs of investigation in an

FCA suit (see note 3, supra), the trebling of damages in this context is

even more readily understood as a means of roughly approximating the

losses incurred by the government as a result of a defendant's fraudulent

act.

remedy of double damages plus a $2000 civil penalty for each

false claim) that this Court has specifically held to be com-

pensatory in nature. We may assume that in some cases the

remedies currently available under the FCA will exceed the

amount necessary to compensate the government for the

losses it incurs as a result of the defendant’s fraud. It is

beyond dispute, however, that common law and/or admini-

strative remedies would consistently fail to make the gov-

ernment whole, since they would not compensate the United

States for its costs of investigation and suit. There is no

reason that the federal rather than the state government

should bear that loss in a case where the State has know-

ingly submitted a false claim.”

II. BECAUSE A QUI TAM ACTION SERVES TO

PROTECT THE PROPERTY OF THE UNITED

STATES GOVERNMENT, AND IS SUBJECT

TO SIGNIFICANT CONTROL BY THE UNITED

STATES, IT IS NOT BARRED BY THE

ELEVENTH AMENDMENT

This Court’s Eleventh Amendment jurisprudence reflects

the Court’s continuing effort properly to define “the funda-

mental constitutional balance between the Federal Govern-

ment and the States.” Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 238 (1985). On the one hand, the States are

21 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), originated

as a qui tam suit brought against an officer of the Bank of the United

States by a private party under a Maryland law giving an informer one-

half of the statutory penalty. Id. at 317, 321-322; see Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 537 (1832) (noting that McCulloch “was a qui tam

action, brought to recover a penalty”). Perhaps because the Bank’s

charter contained a sue-and-be-sued provision, see Act of Apr. 10, 1816,

ch. 44, § 7, 3 Stat. 269, the officer’s susceptibility to suit was not contested.

The Court—while obviously cognizant of the threat to federal authority

that the Maryland tax entailed—appears to have seen no anomaly in the

use of a qui tam suit for penalties as a means of adjudicating the rights

and obligations of an instrumentality of the United States.

“sovereign entities,” Seminole Tribe v. Florida, 517 U.S. 44,

71 n.15 (1996), whose interests ordinarily may not—even

with the authorization of Congress—be subordinated to the

interests of individuals. The States are themselves subordi-

nate, however, to the national government and the national

polity, and their immunity from suit does not extend so far

as to thwart the vindication of important federal interests or

undermine the supremacy of federal law.

A qui tam suit under the FCA is a mechanism by which

the energies of private citizens are enlisted to serve funda-

mentally national ends. As the court of appeals in this case

recognized, a qui tam suit serves to redress an injury done

to the United States; the government receives the bulk of

any recovery; and the government retains significant pre-

rogatives in qui tam litigation under the FCA. Pet. App. 16-

17. Based on those considerations, the court concluded that a

qui tam suit “is in essence a suit by the United States and

hence is not barred by the Eleventh Amendment.” Id. at 18

(emphasis added).

The court of appeals was correct. To be sure, a qui tam

action is not literally filed by a federal officer: the qui tam

relator himself is a private party rather than an officer or

employee of the Executive Branch. Nonetheless, because a

qui tam suit vindicates the property interests of the United

States and is subject to significant control by the United

States, it is “in essence” a suit by the United States—the

equivalent of such a suit—for purposes of Eleventh Amend-

ment immunity.

A. The Qui Tam Mechanism Is A Well-Established

Hybrid That Has Characteristics Of Private Suits But

Was Employed By Congress In The FCA As A Means

Of Protecting The Property Of The United States

1. At (and before) the time the Constitution was ratified,

the qui tam suit was a well-established mechanism for col-

lecting monetary obligations owed to the government. In

Marvin v. Trout, 199 U.S. 212 (1905), the Court observed:

Statutes providing for actions by a common informer,

who himself had no interest whatever 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. The right

to recover the penalty or forfeiture granted by statute

is frequently given to the first common informer who

brings the action, although he has no interest in the

matter whatever except as such informer.

Id. at 225; see also Marcus, 317 U.S. at 541 n.4 (quoting

Marvin, 199 U.S. at 225); note 1, supra. The Court in Mar-

vin also noted that “[ljegislation giving an interest in the

forfeiture to a common informer has been frequent in

Congressional legislation relating to revenue cases.” 199

U.S. at 225.”

A qui tam suit under the FCA is an unusual hybrid having

significant characteristics of both a private and a public

action. The hybrid character of the suit is reflected in the

fact that the relator brings suit “for the person and for

the United States Government,” 31 U.S.C. 3730(b)(1)—a for-

mulation that accords with historical usage. See note 1,

2 One district court has explained that Jof the fourteen statutes

imposing penalties enacted by the First Congress, between ten and twelve

authorized qui tam suits.” United States ex rel. Stillwell v. Hughes

Helicopters, Inc., 714 F. Supp. 1084, 1086 (C.D. Cal. 1989); see id. at 1086

n.2 (citing statutes).

supra (explaining that the term “qui tam” is derived from a

Latin phrase meaning “who brings the action for the king as

well as for himself”).

On the one hand, the relator in an FCA qui tam suit is

similar in significant respects to a plaintiff in a private civil

action. The relator does not hold a formal position within the

government, and he is not selected in the manner specified

by the Appointments Clause of the Constitution (Art. II, § 2,

Cl. 2) for “Officers of the United States.” The relator does

not take an oath of office, and in his conduct of a qui tam

action he does not owe primary allegiance to the govern-

ment. Unlike a public official conducting litigation on behalf

of the government, the relator has a personal financial stake

in the suit, and the premise of the Act is that he will be

motivated at least in substantial part by the desire to further

that private interest. Thus, the Court recently observed

that a; a class of plaintiffs, qui tam relators are different

in kind than the Government. They are motivated primarily

by prospects of monetary reward rather than the public

good.” Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939, 949 (1997).

In other respects, however, a qui tam suit is properly re-

garded as public rather than private litigation. A qui tam

complaint does not allege that the relator was personally

injured by the defendant’s unlawful conduct.” Rather, the

In some cases the relator in a qui tam suit may also allege

personal injury arising from the defendant's overall course of conduct.

The most obvious example is the allegation that the relator was subjected

to adverse employment action in retaliation for his participation or

assistance in a false claims investigation. The FCA's “whistleblower”

provision, 31 U.S.C. 3730(h), establishes a federal cause of action for the

victims of such retaliation. A suit under Section 3730(h), however, is not a

qui tam action: it is brought on behalf of the employee alone; it requires no

allegation of fraud against the United States; and the employee keeps the

entire recovery (if the suit is successful) rather than sharing it with the

government.

gravamen of a qui tam suit is an allegation of wrong done to

the federal government as a corporate entity. And because

the government takes 70% or more of any recovery, see 31

U.S.C. 3730(d)(1) and (2), the suit if successful will redound

primarily to the benefit of the United States. In addition,

the government retains significant prerogatives in qui tam

litigation, including the authority to intervene either to

prosecute the suit or obtain its dismissal, even when it

declines to take over the suit at the outset of the case. See

pages 6-7, supra.

Thus, while a qui tam relator possesses a personal stake in

the outcome of his suit, Congress employed the qui tam

mechanism to further the important public interest in re-

dressing and deterring acts of fraud against the government.

Of course, suits for compensatory relief brought by in-

dividual victims of unlawful conduct may themselves serve

larger public interests. See, e.g., Albemarle Paper Co. v.

Moody, 422 U.S. 405, 417 (1975) (backpay award under Title

VII of the 1964 Civil Rights Act serves a “prophylactic”

purpose because “[i]f employers faced only the prospect of an

injunctive order, they would have little incentive to shun

practices of dubious legality”). But providing compensation

to actual victims has traditionally been regarded as an end in

itself. See id. at 418 (“It is also the purpose of Title VII to

make persons whole for injuries suffered on account of

unlawful employment discrimination.”). By contrast, the

monetary awards authorized by 31 U.S.C. 3730(d)(1) and (2)

rest solely on Congress’s pragmatic determination that pri-

vate enforcement efforts will ultimately serve the gov-

ernment’s interest in increasing its total FCA recoveries and

deterring the submission of false claims—not on any notion

that private persons who have information concerning fraud

against the government have a “right” to be paid for that

information.™

As the Court observed in Hughes Aircraft, qui tam provisions are

2. The Property Clause of the Constitution states:

The Congress shall have Power to dispose of and make

all needful Rules and Regulations respecting the Terri-

tory 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.

U.S. Const. Art. IV, § 3, Cl. 2. Although the principal signifi-

cance of the Property Clause has lain in its broad grant of

authority over land owned by the United States, particularly

the Territories, the powers that the Clause vests in Con-

gress are not limited to real property. As Justice Story

explained, Congress’s authority under the Property Clause

“is not confined to the territory of the United States,” but

“may be applied to the due regulation of all other personal

and real property rightfully belonging to the United States.”

passed upon the theory, based on experience as old as modern

civilization, that one of the least expensive and most effective means

of preventing frauds on the Treasury is to make the perpetrators of

them liable to actions by private persons acting, if you please, under

the strong stimulus of personal ill will or the hope of gain.

520 U.S. at 949. Citing the government's brief in Hughes Aircraft,

petitioner contends (Br. 44) that At Ihe United States itself acknowledges

that the relator does not act on behalf of the United States, but instead

acts in a private capacity.” We argued in Hughes Aircraft, and we

continue to believe, that the relator is properly characterized as a

“private” party rather than as an “Officer of the United States.” Congress

chose to employ the qui tam mechanism, however, not because it regarded

the enrichment of relators as an end in itself, but because it believed that

relators’ self-interested pursuit of personal gain would ultimately serve

important governmental interests. A qui tam suit under the FCA is thus

“the unusual case in which Congress has created a concrete private

interest in the outcome of a suit against a private party for the

Government's benefit, by providing a cash bounty for the victorious

plaintiff.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-573 (1992)

(emphasis added).

Joseph Story, Commentaries on the Constitution of the

United States 478 (Ronald D. Rotunda & John E. Nowak

eds., 1987).

Congress “has the exclusive right to control and dispose

of” the property of the United States, “and no State can

interfere with this right, or embarrass its exercise.” Van

Brocklin v. Tennessee, 117 U.S. 151, 168 (1886). This Court

has held that the power of Congress to dispose of any kind

of property belonging to the United States ‘is vested in

Congress without limitation.“ Alabama v. Texas, 347 U.S.

272, 273 (1954) (quoting United States v. Midwest Oil Co.,

236 U.S. 459, 474 (1915)). It could hardly have escaped the

Framers’ attention that the protection and disposition of

property frequently involves resort to judicial proceedings.

In ratifying the Constitution, the States therefore neces-

sarily consented to Congress’s use of appropriate judicial

mechanisms for carrying into effect its authority over

federal property. Congress’s authority to utilize the courts

for that purpose surely includes the power to employ an

enforcement mechanism, such as the qui tam action, that

was well-accepted by the founding generation as a means of

collecting monetary obligations owed to the government.

To construe the Eleventh Amendment as barring qui tam

suits against state agencies would interfere, in two distinct

senses, with Congress’s authority over “Property belonging

to the United States.” First, and most obviously, a State’s

submission of a “false or fraudulent claim for payment or

approval” (31 U.S.C. 3729%(a)(1)) is itself a direct threat to

congressional control over federal property: the FCA serves

both to safeguard the integrity of the public fise and to

ensure that federal resources are ultimately used in the

manner prescribed by Congress. Recognizing that the

government lacks the resources to detect, investigate, and

pursue every instance of fraud against the United States,

see 1986 Senate Report 7-8, Congress provided a financial

incentive for private relators to supplement the govern-

ment’s efforts. The bar on qui tam suits against state de-

fendants that petitioner advocates is objectionable not

because it would deprive potential relators of their “right” to

a monetary recovery, but because it would disable Congress

from using what it believed to be the most efficacious means

of protecting the property of the United States. Such a

barrier would subvert rather than protect “the fundamental

constitutional balance between the federal government and

the States.” Atascadero, 473 U.S. at 238.”

In addition, the United States’ chose in action against a

State or state agency that has knowingly submitted a false

claim is itself a species of property that may, under ordinary

principles of property law, be assigned to a private party.

Compare Spiller v. Atchison, Topeka & Santa Fe Ry., 253

U.S. 117, 135 (1920) (“A claim for damages sustained through

the exaction of unreasonable charges for the carriage of

freight is a claim not for a penalty but for compensation, is a

property right assignable in its nature, and must be re-

garded as assignable at law, in the absence of a legislative

intent to the contrary.”) (citations omitted); Standard Oil

Co. v. New Jersey, 341 U.S. 428, 439-441 (1951) (a chose in

action is a form of intangible property that can escheat to the

2% This Court’s Eleventh Amendment decisions have emphasized the

States’ substantial interest in controlling the manner in which their

financial obligations to private parties will be determined and enforced.

See, g., Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 465

(1945); Great N. Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Hans v.

Louisiana, 134 U.S. 1, 16 (1890). That concern is not implicated by the

FCA's qui tam mechanism, the purpose of which is to determine and

enforce the defendant's obligation to the federal government. The fact

that a portion of any qui tam recovery goes to the relator does not alter

the constitutional analysis. The process of recovering money owed to the

United States inevitably requires the expenditure of federal funds, both in

the form of wages to the government's own employees and in the form of

payments to private parties. The relator’s share of a qui tam recovery is

simply an expense incurred by the federal government in the course of

recouping money owed to it.

State); Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,

106 F.3d 11, 17 (2d Cir. 1997) (“In general, claims or choses in

action may be freely transferred or assigned to others.”).

The statutory authorization for qui tam suits operates in

practical effect as a partial assignment of the United States’

chose in action to the private party who first files suit. See

United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th

Cir. 1993) (FCA “effectively assigns the government’s claims

to qui tam plaintiffs”), cert. denied, 510 U.S. 1140 (1994).” If

the Eleventh Amendment is construed to bar qui tam suits

against state defendants, then Congress is effectively pre-

cluded from assigning the government’s chose in action, in

derogation of its authority under Article IV to dispose of

property belonging to the United States.

B. The United States Retains Significant Incidents Of

Control Over Qui Tam Suits Under The FCA, Thereby

Insuring Ultimate Political Accountability For Such

Suits

This Court explained in Alden that the essential feature of

suits brought by the United States is that they “require the

exercise of political responsibility for each suit prosecuted

against a State, a control which is absent from a broad

delegation to private persons to sue unconsenting States.”

The judgment in a qui tam suit has traditionally been given

preclusive effect in a subsequent action brought by the government. See

note 1, supra (Blackstone explains that “the verdict passed upon the

defendant in the first [qui tam] suit is a bar to all others, and conclusive

even to the king himself”). Although the text of the FCA does not address

the question directly, the legislative history of the 1986 amendments

reflects Congress’s understanding that the traditional preclusion rule

would apply. See 1986 Senate Report 27 (“if the Government declines to

intervene in a qui tam action, it is estopped from pursuing the same action

administratively or in a separate judicial action”). The applicable pre-

clusion rule reinforces the fact that the effect of the FCA’s qui tam pro-

visions is to assign to the relator the government's cause of action.

119 S. Ct. at 2267. That requirement is satisfied here. Even

before a qui tam complaint is served upon the defendant, it

must be served upon the government, which has an absolute

right to intervene to take over the suit. 31 U.S.C. 3730(b)(2).

A qui tam suit cannot go forward if the government objects,

see pages 6-7 & note 5, supra, and it likewise cannot be dis-

missed or settled over the government’s objection. See 31

U.S.C. 3730(b)(1) (qui tam suit “may be dismissed only if the

court and the Attorney General give written consent to the

dismissal and their reasons for consenting”); Searcy v.

Philips Elecs. N. Am. Corp., 117 F.3d 154, 156-158 (5th Cir.

1997); note 4, supra; but see United States ex rel. Killings-

worth v. Northrop Corp., 25 F.3d 715, 720-724 (9th Cir. 1994).

Every qui tam suit that proceeds without government

intervention has therefore survived scrutiny by the United

States, which has declined to exercise its power to dismiss

the case or to take an active role in the litigation; the United

States at all times retains the power to intervene. Thus, the

dissenting judge in the court of appeals was simply mistaken

in suggesting (Pet. App. 72-85) that a qui tam suit is in-

sulated from the judgment of politically accountable officials.

Although a qui tam relator is not himself politically account-

able, he cannot proceed over the objection of the Attorney

General, who is “entrusted with the constitutional duty to

‘take Care that the Laws be faithfully executed.’” Alden,

119 S. Ct. at 2267 (quoting U.S. Const. Art. II. § 3).

In this respect, qui tam suits for defrauding the United

States are utterly unlike the suits brought by state em-

ployees for back wages in Alden, or the suits brought by

Alaskan native villages for funding pursuant to state statute

in Blatchford v. Native Village, 501 U.S. 775, 782 (1991). In

neither of those cases was the private plaintiff subject to the

control of the United States as is a qui tam relator. And that

difference in control is related to the difference in the

interests at stake. Because a qui tam suit under the FCA is

brought to redress an injury done to the United States, and

the bulk of any recovery goes to the United States, the

suit is appropriately subject to the control of the federal

government—unlike the suit for back wages brought by the

employees in Alden, or the Blatchford plaintiffs’ attempt to

obtain funds allegedly due them under state law.

C. The Application Of Eleventh Amendment Principles

Characteristically Turns On An Examination Of The

Interests At Stake In A Particular Suit

As we explain above, the FCA’s qui tam provisions are a

means by which Congress sought to redress and deter acts

of fraud against the federal government. This suit is

therefore fundamentally different from the cases on which

petitioner relies, which uniformly involve allegations of legal

wrong done to private parties. The thrust of petitioner’s

argument is that the relator’s private status is dispositive

of the Eleventh Amendment inquiry, regardless of the

interests that the FCA’s qui tam provisions are intended to

serve. That theory is inconsistent with this Court’s pre-

cedents. In a variety of contexts, this Court has made clear

that application of state sovereign immunity principles turns

on the nature of the interests affected by a particular suit or

category of suits.

1. The determination whether a particular case involves

a suit “against one of the United States” depends not simply

on the identity of the nominal defendant, but upon the

relationship between that defendant and the State, and upon

the practical consequences that the litigation (if successful).

will entail. The Court has repeatedly held that

the nature of a suit as one against the state is to be

determined by the essential nature and effect of the

proceeding. And when the action is in essence one for

the recovery of money from the state, the state is the

real, substantial party in interest and is entitled to

invoke its sovereign immunity from suit even though

individual officials are nominal defendants.

Ford Motor Co. v. Department of Treasury, 323 U.S. 459,

464 (1945) (citation omitted); see also, eg., Edelman v.

Jordan, 415 U.S. 651, 663 (1974, (“the rule has evolved that a

suit by private parties seeking to impose a liability which

must be paid from public funds in the state treasury is

barred by the Eleventh Amendment”). The Court under-

takes a similar functional analysis in determining whether a

particular state instrumentality is an “arm of the State” that

may invoke the State’s Eleventh Amendment immunity.

See, e.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429-

431 (1997).

2. The States, “pursuant to the plan of the Convention,”

consented to suits by other States. Alden, 119 S. Ct. at 2267;

accord, e. g., Blatchford v. Native Village, 501 U.S. 775, 782

(1991); Principality of Monaco v. Mississippi, 292 U.S. 313,

328-329 (1934). The Court has made clear, however, that a

State’s presence as a named plaintiff is not a sufficient basis

for permitting such suits to go forward. Thus, in New

Hampshire v. Louisiana, 108 U.S. 76 (1883), the Court held

that suits brought in the names of the States of New Hamp-

shire and New York, seeking to collect on bonds and

coupons issued by the State of Louisiana, were barred by the

Eleventh Amendment. /d. at 88-91. Although the private

bond and coupon holders had formally assigned their claims

to the plaintiff States in conformity with those States’ laws,

this Court found that the plaintiff States and their officers

were “only nominal actors in the proceeding,” since the

proceeds of the suits would flow entirely to the private

parties. Id. at 88-89.

In South Dakota v. North Carolina, 192 U.S. 286 (1904),

by contrast, a private bond holder donated his bonds out-

right to the State of South Dakota. The Court observed that

there could be no “question respecting the title of South

Dakota to these bonds,” since It hey [we]re not held by the

State as representative of individual owners, * * * for they

were given outright and absolutely to the State.” Id. at 310

(citing and distinguishing New Hampshire v. Louisiana,

supra). The Court concluded on that basis that the suit

was properly regarded as “an action brought by one State

against another to enforce a property right” and was there-

fore permitted to go forward. Id. at 318; see Oklahoma ex

rel. Johnson v. Cook, 304 U.S. 387, 392-393 (1938) (discussing

New Hampshire and South Dakota). Thus, the question

whether a suit has been brought by a State, like the question

whether it has been brought against a State, is resolved by

reference to the suit’s practical effect on the State’s

interests.

3. A suit against a government officer in his official

capacity “generally represent[s] only another way of plead-

ing an action against the entity of which an officer is an

agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quot-

ing Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

658, 690 n.55 (1978)) see also Idaho v. Coeur d’Alene Tribe,

521 U.S. 261, 269-270 (1997). Consistent with that principle,

the Court has held that official-capacity suits against in-

dividual state officers seeking retrospective monetary

awards are barred by the Eleventh Amendment. See pages

43-44, supra. However, official-capacity suits arising under

federal law and seeking prospective injunctive relief (com-

monly known as “Ex parte Young suits,” see Ex parte

Young, 209 U.S. 123 (1908)) are permitted to go forward,

“notwithstanding the obvious impact on the State itself,”

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

104 (1984), that such relief entails.

The justification for the Ex parte Young rule is that pri-

vate suits for prospective relief play a crucial role in

ensuring the supremacy of federal law. “(T]he Young doc-

trine has been accepted as necessary to permit the federal

courts to vindicate federal rights and hold state officials

responsible to ‘the supreme authority of the United States.’”

Pennhurst, 465 U.S. at 105; see also Alden, 119 S. Ct. at 2263

(Ex parte Young rule reflects a determination “that certain

suits for declaratory or injunctive relief against state officers

must * * * be permitted if the Constitution is to remain the

supreme law of the land”). As the Court explained in Green

v. Mansour, 474 U.S. 64 (1985):

Both prospective and retrospective relief implicate

Eleventh Amendment concerns, but the availability of

prospective relief of the sort awarded in Ex parte Young

gives life to the Supremacy Clause. Remedies designed

to end a continuing violation of federal law are necessary

to vindicate the federal interest in assuring the supre-

macy of that law. But compensatory or deterrence inter-

ests are insufficient to overcome the dictates of the

Eleventh Amendment.

Id. at 68 (citations omitted). This Court’s Ex parte Young

jurisprudence confirms that even a private action that is in

substance one against the State may proceed if it will serve

sufficiently important national objectives.”

27 The original rationale for the rule announced in Ex parte Young

was that a state official who behaves in an unconstitutional manner is

thereby “stripped of his official or representative character,” and that a

suit to compel compliance with the Constitution is for that reason properly

regarded as one against the individual officer rather than against the

State. Ex parte Young, 209 U.S. at 160. The Court has since recognized,

however, that in official-capacity suits the distinction between the officer

and the State posited in Ex parte Young is essentially a fiction, see Coeur

d'Alene, 521 U.S. at 269-270; Pennhurst, 465 U.S. at 114 n.25, and that the

more persuasive justification for permitting suits for prospective relief to

go forward is that they play a crucial role in ensuring the supremacy of

federal law. See Green, 474 U.S. at 68; Pennhurst, 465 U.S. at 104-105; see

also Coeur d'Alene, 521 U.S. at 293 (opinion of O’Connor, J.). The Court in

Pennhurst held on that basis that the Eleventh Amendment bars an

official-capacity suit against individual state officers seeking prospective

relief on state-law grounds. 465 U.S. at 106-117. The Court observed that

“the general criterion for determining when a suit is in fact one against the

sovereign is the effect of the relief sought.” Jd. at 107. The Court declined

to extend the Ex parte Young rule to state-law claims, explaining that

Aim such a case the entire basis for the doctrine of Young * dis-

Like a qui tam relator, the plaintiff in an Ex parte Young

suit will have a personal stake in the case (else he would lack

Article III standing) and will presumably conduct the liti-

gation in a self-interested manner. The premise of this

Court’s Ex parte Young jurisprudence is that such suits

should nevertheless be allowed to go forward because the

plaintiffs’ pursuit of their own self-interest will (at least in

the aggregate) ultimately serve the national interest in

ensuring the supremacy of federal law. The FCA’s qui tam

provisions similarly reflect Congress’s considered judgment

that private relators’ pursuit of personal financial gain will

further quintessentially national objectives.

4. The Court in Alden indicated that Congress could val-

idly authorize federal officials to file suit against a State to

obtain retrospective monetary relief for state employees

injured by violations of the Fair Labor Standards Act

(FLSA). See 119 S. Ct. at 2269.“ The Court held, however,

appears,” because “[a] federal court’s grant of relief against state officials

on the basis of state law * * * does not vindicate the authority of federal

law.” Id. at 106.

2% Federal officials may properly be authorized to file suit to enforce

federal civil and criminal laws, regardless of whether the government as a

corporate body has a pecuniary or similarly tangible interest in the

outcome of the suit. See, e.g., Director, OWCP v. Newport News Ship-

building & Dry Dock Co., 514 U.S. 122, 132-133 (1995); INS v. Chadha, 462

U.S. 919, 931 (1983); SEC v. United States Realty & Improvement Co., 310

U.S. 434, 459-460 (1940); Coleman v. Miller, 307 U.S. 433, 441-442 (1939);

In re Debs, 158 U.S. 564, 584-586 (1895); ef. Diamond v. Charles, 476 U.S.

54, 62 (1986) (LA] State has standing to defend the constitutionality of its

statute.”). That principle serves to distinguish the hypothetical Labor

Department enforcement action discussed in Alden from the suit in New

Hampshire v. Louisiana. The claim in that case was that Louisiana had

breached its obligations under bonds and coupons that it had issued; New

Hampshire did not (and presumably could not) assert that the case

implicated its sovereign interest in the enforcement of its own legal code.

Because New Hampshire had neither a sovereign nor a proprietary

interest in the proceeding, the suit was in substance one by the private

bond and coupon holders, and it was therefore barred by the Eleventh

that Congress could not properly confer the authority to sue

upon the employees themselves. The Court explained:

The 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 it-

self deem the case of sufficient importance to take action

against the State; and history, precedent, and the struc-

ture of the Constitution make clear that, under the plan

of the Convention, the States have consented to suits of

the first kind but not of the second.

Ibid.

That passage does not suggest that the participation of a

federal officer is an absolute prerequisite to the maintenance

of any suit against a State. To the contrary, the passage is in

terms a comparison between two different methods of en-

forcing the FLSA. The gravamen of an FLSA suit is a claim

of legal wrong done to individual employees, and the relief

requested is an award of money to those private parties. In

that context, the Court in Alden found the participation of a

constitutional officer to be necessary to ensure that the

federal interests involved in a particular case are sufficiently

important to justify subjecting the State to suit. By con-

trast, the FCA’s qui tam mechanism was established by

Congress as a means of vindicating quintessentially national

interests. Because the gravamen of an FCA suit is an

allegation of wrong done to the United States as a corporate

body, and because the United States is the principal

beneficiary of any successful action, the suit retains its

Amendment. By contrast, a Labor Department FLSA enforcement action

would further the federal government's sovereign interest in the

enforcement of its own law, even if the monetary relief flowed entirely to

the aggrieved employees. Cf. General Tel. Co. v. EEOC, 446 U.S. 318, 326

(1980) (“When the EEOC acts, albeit at the behest of and for the benefit of

specific individuals, it acts also to vindicate the public interest in pre-

venting employment discrimination.”).

——

fundamental public character regardless of whether it is

brought by the government or by a qui tam relator.”

Moreover, the government retains significant preroga-

tives in a qui tam suit under the FCA. The government may

intervene, at the outset of the suit or later, either to

prosecute or to dismiss the action. See pages 6-7, 41-43,

supra. The Act also provides that a qui tam suit “may be

dismissed only if the court and the Attorney General give

written consent to the dismissal and their reasons for

consenting.” 31 U.S.C. 3730(b)(1); see note 4, supra. Insofar

as it permits the relator to go forward absent affirmative

government action to take control of the suit, the FCA re-

flects a congressional determination that qui tam suits will

presumptively serve the interests of the United States.

Federal officials retain ample authority, however, to protect

the national interest if they believe that interest to be

threatened by a particular qui tam action.

2 — Petitioner’s reliance (Br. 31-32) on Blatchford is misplaced for the

same reason. The plaintiff Tribes in Blatchford alleged an injury to them-

selves and sought an order requiring the State to pay them money. 501

U.S. at 778. The case did not involve an allegation of wrong done to the

United States as a corporate body, nor would any of the requested mone-

tary relief have flowed to the federal treasury.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

OCTOBER 1999

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

MICHAEL F. HERTZ

DOUGLAS N. LETTER

JOAN E. HARTMAN

MICHAEL E. ROBINSON

Attorneys

1. The Property Clause of the United States

Constitution, Article IV, Section 3, Clause 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.

2. The Eleventh Amendment to the United States

Constitution provides:

The 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.

3. Section 3729 of Title 31, United States Code,

provides in pertinent part:

(a) LIABILITY FOR CERTAIN ACTS.—

Any person who—

(1) knowingly presents, or causes to be

presented, to an officer or employee of the

United States Government or a member of the

Armed Forces of the United States a false or

fraudulent claim for payment or approval;

is liable to the United States Government for a civil

penalty of not less than $5,000 and not more than

$10,000, plus 3 times the amount of damages which

(la)

the Government sustains because of the act of that

person.

4. Section 3730 of Title 31, United States Code, |

provides in pertinent part:

(a) RESPONSIBILITIES OF THE ATTOR-

NEY GENERAL.—The Attorney General dili-

gently shall investigate a violation under section

3729. If the Attorney General finds that a person

has violated or is violating section 3729, the Attor-

ney General may bring a civil action under this

section against the person.

(b)ACTIONS BY ?RIVATE PERSONS.— (1)

A person may 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. The action may be

dismissed only if the court and the Attorney

General give written consent to the dismissal and

their reasons for consenting.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.