OCTOBER TERM, 1999
Syllabus
VERMONT AGENCY OF NATURAL RESOURCES
v.
UNITED STATES EX REL. STEVENS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 98-1828. Argued November 29, 1999-Decided May 22, 2000
Under the False Claims Act (FCA), a private person (the relator)
may bring a
qui tam civil action "in the name of the
[Federal] Government," 31 U. S. C. § 3730(b)(1), against "[a]ny
person" who,
inter alia, "knowingly presents ... to ... the
... Government ... a false or fraudulent claim for payment," §
3729(a). The relator receives a share of any proceeds from the
action. §§ 3730(d)(1)-(2). Respondent Stevens brought such an
action against petitioner state agency, alleging that it had
submitted false claims to the Environmental Protection Agency in
connection with federal grant programs the EPA administered.
Petitioner moved to dismiss, arguing that a State (or state agency)
is not a "person" subject to FCA liability and that a
qui
tam action in federal court against a State is barred by the
Eleventh Amendment. The District Court denied the motion, and
petitioner filed an interlocutory appeal. Respondent United States
intervened in the appeal in support of respondent Stevens. The
Second Circuit affirmed.
Held: A private individual may not bring suit in federal
court on behalf of the United States against a State (or state
agency) under the FCA. Pp. 771-788.
(a) A private individual has standing to bring suit in federal
court on behalf of the United States under the FCA. Stevens meets
the requirements necessary to establish Article III standing. In
particular, he has demonstrated "injury in fact" -a harm that is
both "concrete" and "actual or imminent, not conjectural or
hypothetical."
Whitmore v.
Arkansas, 495 U. S. 149, 155. He
contends he is suing to remedy injury in fact suffered by the
United States-both the injury to its sovereignty arising from
violation of its laws and the proprietary injury resulting from the
alleged fraud. The concrete private interest that Stevens has in
the outcome of his suit, in the form of the bounty he will receive
if the suit is successful, is insufficient to confer standing,
since that interest does not consist of obtaining compensation for,
or preventing, the violation of a legally protected right. An
adequate basis for Stevens' standing, however, is found in the
doctrine that the assignee of a claim has standing to assert the
injury in fact suffered by the assignor. Because the FCA can
reasonably be regarded as effect-
766
Syllabus
ing a partial assignment of the Government's damages claim, the
United States' injury in fact suffices to confer standing on
Stevens. This conclusion is confirmed by the long tradition of
qui tam actions in England and the American Colonies, which
conclusively demonstrates that such actions were "cases and
controversies of the sort traditionally amenable to, and resolved
by, the judicial process."
Steel Co. v.
Citizens for
Better Environment, 523 U. S. 83, 102. pp.
771-778.
(b) The FCA does not subject a State (or state agency) to
liability in a federal-court suit by a private individual on behalf
of the United States. Such a State or agency is not a "person"
subject to
qui tam liability under § 3729(a). The Court's
longstanding interpretive presumption that "person" does not
include the sovereign applies to the text of § 3729(a). Although
not a hard and fast rule of exclusion, the presumption may be
disregarded only upon some affirmative showing of statutory intent
to the contrary. As the historical context makes clear, various
features of the FCA, both as originally enacted and as amended, far
from providing the requisite affirmative indications that the term
"person" included States for purposes of
qui tam liability,
indicate quite the contrary. This conclusion is buttressed by the
ordinary rule of statutory construction that if Congress intends to
alter the usual constitutional balance between States and the
Federal Government, it must make its intention to do so
unmistakably clear in the statute's language, and by the doctrine
that statutes should be construed so as to avoid difficult
constitutional questions. The Court expresses no view as to whether
an action in federal court by a
qui tam relator against a
State would run afoul of the Eleventh Amendment, but notes that
there is "a serious doubt" on that score.
Ashwander v.
TVA, 297 U. S.
288, 348. Pp.778-787.
162 F.3d
195, reversed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, THOMAS, and BREYER, JJ.,
joined. BREYER, J., filed a concurring statement,
post, p.
788. GINSBURG, J., filed an opinion concurring in the judgment, in
which BREYER, J., joined,
post, p. 788. STEVENS, J., filed a
dissenting opinion, in which SOUTER, J., joined,
post, p.
789.
J. Wallace Malley, Jr., Deputy Attorney General of
Vermont, argued the cause for petitioner. With him on the briefs
were
William H. Sorrell, Attorney General,
Bridget C.
Asay, Mark J. Di Stefano, and
Wendy
Morgan, Assistant
767
Attorneys General,
David M. Rocchio, Special Assistant
Attorney General,
Ronald A. Shems, and
Carter G.
Phillips.
Deputy Solicitor General Kneedler argued the cause for
respondent United States. With him on the briefs were
Solicitor General Waxman, Acting Assistant Attorney General
Ogden, Deputy Solicitor General Underwood, Malcolm L. Stewart,
Michael F. Hertz, Douglas N. Letter, and Michael
Theodore B. Olson argued the cause for respondent Stevens. With
him on the briefs were Thomas G. Hungar, Miguel A. Estrada, Stephen
J. Soule, Matthew E. C. Pifer, and Mark G. Hall.
*
*Briefs of amici curiae urging reversal were filed for the State
of New York et al. by Eliot Spitzer, Attorney General of New York,
Preeta D. Bansal, Solicitor General, Peter H. Schiff, Deputy
Solicitor General, and Howard L. Zwickel, Assistant Attorney
General, and by the Attorneys General for their respective States
as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska,
Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer
of California, Ken Salazar of Colorado, Richard Blumenthal of
Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of
Florida, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii,
Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A.
Modisett of Indiana, Thomas
J. Miller of Iowa, Carla
J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew
Ketterer of Maine,
J. Joseph Curran, Jr., of Maryland,
Jennifer M. Granholm of Michigan, Mike Moore of Mississippi,
Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T.
McLaughlin of New Hampshire, John
J. Farmer, Jr., of New
Jersey, Patricia A. Madrid of New Mexico, Michael F. Easley of
North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery
of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D.
Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island,
Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John
Cornyn of Texas, Jan Graham of Utah, Mark L. Earley of Virginia,
Christine Q Gregoire of Washington, Darrell V. McGraw, Jr., of West
Virginia, and Gay Woodhouse of Wyoming; for the City of New York et
al. by Leonard
J. Koerner, James K. Hahn, Richard A. Devine,
Patrick T. Driscoll, Jr., Thomas Burnham, Donna M. Lach, Louise H.
Renne, and Patrick
J. Mahoney; for the Alabama Medicaid
Agency et al. by Charles A. Miller and Caroline M. Brown; for the
American Medical Association et al. by Jack
768
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether a private individual may
bring suit in federal court on behalf of the United States against
a State (or state agency) under the False Claims Act, 31 U. S. C.
§§ 3729-3733.
I
Originally enacted in 1863, the False Claims Act (FCA) is the
most frequently used of a handful of extant laws creating a form of
civil action known as
qui tam.1 As amended, the
R. Bierig, Paul E. Kalb, Michael L. Ile, Anne M. Murphy, and
Leonard A. Nelson; for the American Petroleum Institute by Donald
B. Craven, Clarence T. Kipps, Jr., Alan I. Horowitz, and Peter B.
Hutt II; for FMC Corporation by Donald B. Ayer, Gregory G. Katsas,
and John B. Kennedy; for the National Governors' Association et al.
by Richard Ruda and James I. Crowley; for the Orleans Parish School
Board et al. by Sam A. LeBlanc III and Robert Markle; for the
Regents of the University of Minnesota et al. by Mark B. Rotenberg
and Mark A. Bohnhorst.
Briefs of
amici curiae urging affirmance were filed for
the National Whistle Blower Center by
Stephen M. Kohn, Michael
D. Kohn, and
David K. Colapinto; and for Taxpayers
Against Fraud by
Evan H. Caminker and
Jonathan S.
Massey.
Briefs of
amici curiae were filed for the Aerospace
Industries Association of America, Inc., by
Charles G.
Cole, Jerald S.
Howe, Jr., and
Shannen W
Coffin; for the American Clinical Laboratory Association by
Hope S.
Foster; for the Chamber of Commerce of the
United States of America et al. by
Herbert L. Fenster, Stephen
A. Bokat, and
Robin S.
Conrad; for the Federation
of American Health Systems by
Walter E. Dellinger and
Charles R. Work; for Friends of the Earth et al. by
James S.
Chandler, Jr., Bruce J.
Terris, and
Carolyn Smith Pravlik; for the National
Employment Lawyers Association by
Frederick M. Morgan, Jr.,
James B. Helmer, Jr., and
Paula A. Brantner; for the
Project on Government Oversight by
Charles Tiefer and
Jonathan W Cuneo; and for Taxpayers Against Fraud by
Evan
H. Caminker and
Vicki C.
Jackson.
1
Qui tam is short for the Latin phrase
qui tam pro
domino rege quam pro se ipso in hac parte sequitur, which means
"who pursues this action on our Lord the King's behalf as well as
his own." The phrase dates from at least the time of Blackstone.
See 3 W. Blackstone, Commentaries *160.
Three other
qui tam statutes, all also enacted over 100
years ago, remain on the books. See 25 U. S. C. § 81 (providing
cause of action and
769
FCA imposes civil liability upon "[a]ny person" who,
inter alia, "knowingly presents, or causes to be presented,
to an officer or employee of the United States Government ... a
false or fraudulent claim for payment or approval." 31 U. S. C. §
3729(a). The defendant is liable for up to treble damages and a
civil penalty of up to $10,000 per claim.
Ibid. An FCA
action may be commenced in one of two ways. First, the Government
itself may bring a civil action against the alleged false claimant.
§ 3730(a). Second, as is relevant here, a private person (the
relator) may bring a
qui tam civil action "for the person
and for the United States Government" against the alleged false
claimant, "in the name of the Government." § 3730(b)(1).
If a relator initiates the FCA action, he must deliver a copy of
the complaint, and any supporting evidence, to the Government, §
3730(b)(2), which then has 60 days to intervene in the action, §§
3730(b)(2), (4). If it does so, it assumes primary responsibility
for prosecuting the action, § 3730(c)(1), though the relator may
continue to participate in the litigation and is entitled to a
hearing before voluntary dismissal and to a court determination of
reasonableness before settlement, § 3730(c)(2). If the Government
declines to intervene within the 60-day period, the relator has the
exclusive right to conduct the action, § 3730(b)(4), and the
Government may subsequently intervene only on a showing of "good
cause," § 3730(c)(3). The relator receives a share of any proceeds
from the action-generally ranging from 15
share of recovery against a person contracting with Indians in
an unlawful manner); §201 (providing cause of action and share of
recovery against a person violating Indian protection laws); 35 U.
S. C. § 292(b) (providing cause of action and share of recovery
against a person falsely marking patented articles); cf. 18 U. S.
C. § 962 (providing for forfeiture to informer of share of vessels
privately armed against friendly nations, but not expressly
authorizing suit by informer); 46 U. S. C. § 723 (providing for
forfeiture to informer of share of vessels removing undersea
treasure from the Florida coast to foreign nations, but not
expressly authorizing suit by informer).
770
to 25 percent if the Government intervenes (depending upon the
relator's contribution to the prosecution), and from 25 to 30
percent if it does not (depending upon the court's assessment of
what is reasonable)-plus attorney's fees and costs. §§
3730(d)(1)-(2).
Respondent Jonathan Stevens brought this
qui tam action
in the United States District Court for the District of Vermont
against petitioner Vermont Agency of Natural Resources, his former
employer, alleging that it had submitted false claims to the
Environmental Protection Agency (EP A) in connection with various
federal grant programs administered by the EP A. Specifically, he
claimed that petitioner had overstated the amount of time spent by
its employees on the federally funded projects, thereby inducing
the Government to disburse more grant money than petitioner was
entitled to receive. The United States declined to intervene in the
action. Petitioner then moved to dismiss, arguing that a State (or
state agency) is not a "person" subject to liability under the FCA
and that a
qui tam action in federal court against a State
is barred by the Eleventh Amendment. The District Court denied the
motion in an unpublished order. App. to Pet. for Cert. 86-87.
Petitioner then filed an interlocutory appeal,2 and the District
Court stayed proceedings pending its outcome. Respondent United
States intervened in the appeal in support of respondent Stevens. A
divided panel of the Second Circuit affirmed,
162
F.3d 195 (1998), and we granted certiorari, 527 U. S. 1034
(1999).
2 The denial of a motion to dismiss based on a claim of Eleventh
Amendment immunity is immediately appealable. See
Puerto Rico
Aqueduct and Sewer Authority v.
Metcalf &
Eddy,
Inc., 506 U. S.
139 (1993). The Second Circuit exercised pendent appellate
jurisdiction over the statutory question. See
Swint v.
Chambers County Comm'n, 514 U. S. 35, 50-51
(1995).
771
II
We first address the jurisdictional question whether respondent
Stevens has standing under Article III of the Constitution to
maintain this suit. See
Steel Co. v.
Citizens for Better
Environment, 523
U. S. 83, 93-102 (1998).
As we have frequently explained, a plaintiff must meet three
requirements in order to establish Article III standing. See,
e.
g., Friends of Earth, Inc. v.
Laidlaw Environmental Services
(TOC), Inc., 528
U. S. 167, 180-181 (2000). First, he must demonstrate "injury
in fact"-a harm that is both "concrete" and "actual or imminent,
not conjectural or hypothetical."
Whitmore v.
Arkansas, 495
U. S. 149, 155 (1990) (internal quotation marks and citation
omitted). Second, he must establish causation-a "fairly ...
trace[able]" connection between the alleged injury in fact and the
alleged conduct of the defendant.
Simon v.
Eastern Ky.
Welfare Rights Organization, 426 U. S. 26, 41 (1976).
And third, he must demonstrate redressability-a "substantial
likelihood" that the requested relief will remedy the alleged
injury in fact.
Id., at 45. These requirements together
constitute the "irreducible constitutional minimum" of standing,
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560
(1992), which is an "essential and unchanging part" of Article
Ill's case-orcontroversy requirement,
ibid., and a key
factor in dividing the power of government between the courts and
the two political branches, see
id., at 559-560.
Respondent Stevens contends that he is suing to remedy an injury
in fact suffered by the United States. It is beyond doubt that the
complaint asserts an injury to the United States-both the injury to
its sovereignty arising from violation of its laws (which suffices
to support a criminal lawsuit by the Government) and the
proprietary injury resulting from the alleged fraud. But "[t]he
Art. III judicial power exists only to redress or otherwise to
protect against injury
to the complaining party." Warth v.
Seldin, 422 U.
S. 490,
772
499 (1975) (emphasis added); see also
Sierra Club v.
Morton, 405 U.
S. 727, 734-735 (1972). It would perhaps suffice to say that
the relator here is simply the statutorily designated agent of the
United States,
in whose name (as the statute provides, see
31 U. S. C. § 3730(b)) the suit is brought-and that the relator's
bounty is simply the fee he receives
out of the United States'
recovery for filing and/or prosecuting a successful action on
behalf of the Government. This analysis is precluded, however, by
the fact that the statute gives the relator himself an interest
in the lawsuit, and not merely the right to retain a fee out
of the recovery. Thus, it provides that "[a] person may bring a
civil action for a violation of section 3729
for the person and
for the United States Government," § 3730(b) (emphasis added);
gives the relator "the right to continue as a party to the action"
even when the Government itself has assumed "primary
responsibility" for prosecuting it, § 3730(c)(1); entitles the
relator to a hearing before the Government's voluntary dismissal of
the suit, § 3730(c)(2)(A); and prohibits the Government from
settling the suit over the relator's objection without a judicial
determination of "fair[ness], adequa[cy] and reasonable[ness]," §
3730(c)(2)(B). For the portion of the recovery retained by the
relator, therefore, some explanation of standing other than agency
for the Government must be identified.
There is no doubt, of course, that as to this portion of the
recovery-the bounty he will receive if the suit is successful-a
qui tam relator has a "concrete private interest in the
outcome of [the] suit."
Lujan, supra, at 573. But the same
might be said of someone who has placed a wager upon the outcome.
An interest unrelated to injury in fact is insufficient to give a
plaintiff standing. See
Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464,
486 (1982);
Sierra Club, supra, at 734-735. The interest
must consist of obtaining compensation for, or preventing, the
violation of a legally pro-
773
tected right. See
Lujan, supra, at 560-561. A
qui
tam relator has suffered no such invasion-indeed, the "right"
he seeks to vindicate does not even fully materialize until the
litigation is completed and the relator prevails.3 This is not to
suggest that Congress cannot define new legal rights, which in turn
will confer standing to vindicate an injury caused to the claimant.
See
Warth, supra, at 500. As we have held in another
context, however, an interest that is merely a "byproduct" of the
suit itself cannot give rise to a cognizable injury in fact for
Article III standing purposes. See
Steel Co., supra, at 107
("[A] plaintiff cannot achieve standing to litigate a substantive
issue by bringing suit for the cost of bringing suit"); see also
Diamond v.
Charles, 476 U. S. 54, 69-71 (1986)
(holding that assessment of attorney's fees against a party does
not confer standing to pursue the action on appeal).
We believe, however, that adequate basis for the relator's suit
for his bounty is to be found in the doctrine that the assignee of
a claim has standing to assert the injury in fact suffered by the
assignor. The FCA can reasonably be regarded as effecting a partial
assignment of the Government's damages claim.4 Although we have
never expressly recognized "representational standing" on the part
of assignees, we have routinely entertained their suits, see,
e. g.,
3 Blackstone noted, with regard to English
qui tam
actions, that "no particular person, A or B, has any right, claim
or demand, in or upon [the bounty], till after action brought," and
that the bounty constituted an "inchoate imperfect degree of
property ... [which] is not consummated till judgment." 2 W.
Blackstone, Commentaries *437.
4 In addressing the Eleventh Amendment issue that we leave open
today, the dissent suggests that we are asserting that a
qui
tam relator "is, in effect, suing as an assignee of the United
States."
Post, at 802 (opinion of STEVENS, J.); see also
post, at 796 (same). More precisely, we are asserting that a
qui tam relator is, in effect, suing as a
partial
assignee of the United States.
774
Poller v.
Columbia Broadcasting System, Inc.,
368 U. S. 464,
465 (1962);
Automatic Radio Mfg. Co. v.
Hazeltine
Research, Inc., 339 U. S. 827, 829
(1950);
Hubbard v.
Tod, 171 U. S. 474, 475
(1898)-and also suits by subrogees, who have been described as
"equitable assign[ees]," L. Simpson, Law of Suretyship 205 (1950);
see,
e. g., Vimar Seguros y Reaseguros, S.
A. v.
M/V Sky Reefer, 515 U. S. 528, 531
(1995);
Musick, Peeler &
Garrett v.
Employers
Ins. of Wausau, 508 U. S. 286, 288
(1993). We conclude, therefore, that the United States' injury in
fact suffices to confer standing on respondent Stevens.
We are confirmed in this conclusion by the long tradition of
qui tam actions in England and the American Colonies. That
history is particularly relevant to the constitutional standing
inquiry since, as we have said elsewhere, Article Ill's restriction
of the judicial power to "Cases" and "Controversies" is properly
understood to mean "cases and controversies of the sort
traditionally amenable to, and resolved by, the judicial process."
Steel Co., 523 U. S., at 102; see also
Coleman v.
Miller, 307 U.
S. 433, 460 (1939) (opinion of Frankfurter, J.) (the
Constitution established that "[j]udicial power could come into
play only in matters that were the traditional concern of the
courts at Westminster and only if they arose in ways that to the
expert feel of lawyers constituted 'Cases' or 'Controversies'
").
Qui tam actions appear to have originated around the end
of the 13th century, when private individuals who had suffered
injury began bringing actions in the royal courts on both their own
and the Crown's behalf. See,
e. g., Prior of Lewes v.
De
Holt (1300), reprinted in 48 Selden Society 198 (1931). Suit in
this dual capacity was a device for getting their private claims
into the respected royal courts, which generally entertained only
matters involving the Crown's interests. See Milsom, Trespass from
Henry III to Edward III, Part III: More Special Writs and
Conclusions,
775
74 L. Q. Rev. 561, 585 (1958). Starting in the 14th century, as
the royal courts began to extend jurisdiction to suits involving
wholly private wrongs, the common-law
qui tam action
gradually fell into disuse, although it seems to have remained
technically available for several centuries. See 2 W. Hawkins,
Pleas of the Crown 369 (8th ed. 1824).
At about the same time, however, Parliament began enacting
statutes that explicitly provided for
qui tam suits. These
were of two types: those that allowed injured parties to sue in
vindication of their own interests (as well as the Crown's), see,
e. g., Statute Providing a Remedy for Him Who Is
Wrongfully Pursued in the Court of Admiralty, 2 Hen. IV; ch. 11
(1400), and-more relevant here-those that allowed informers to
obtain a portion of the penalty as a bounty for their information,
even if they had not suffered an injury themselves, see,
e.
g., Statute Prohibiting the Sale of Wares After the Close of
Fair, 5 Edw. III, ch. 5 (1331); see generally Common Informers Act,
14 & 15 Geo. VI, ch. 39, sched. (1951) (listing informer
statutes). Most, though not all, of the informer statutes expressly
gave the informer a cause of action, typically by bill, plaint,
information, or action of debt. See,
e. g., Bill for
Leases of Hospitals, Colleges, and Other Corporations, 33 Hen.
VIII, ch. 27 (1541); Act to Avoid Horse-Stealing, 31 Eliz. I, ch.
12, § 2 (1589); Act to Prevent the Over-Charge of the People by
Stewards of Court- Leets and Court-Barons, 2 Jac. I, ch. 5
(1604).
For obvious reasons, the informer statutes were highly subject
to abuse, see M. Davies, The Enforcement of English Apprenticeship
58-61 (1956)-particularly those relating to obsolete offenses, see
generally 3 E. Coke, Institutes of the Laws of England 191 (4th ed.
1797) (informer prosecutions under obsolete statutes had been used
to "vex and entangle the subject"). Thus, many of the old
enactments were repealed, see Act for Continuing and Reviving of
Divers Statutes and Repeal of Divers Others, 21 Jac. I, ch. 28, §
11
776
(1623), and statutes were passed deterring and penalizing
vexatious informers, limiting the locations in which informer suits
could be brought, and subjecting such suits to relatively short
statutes of limitation, see Act to Redress Disorders in Common
Informers, 18 Eliz. I, ch. 5 (1576); Act Concerning Informers, 31
Eliz. I, ch. 5 (1589); see generally Davies,
supra, at
63-76. Nevertheless, laws allowing
qui tam suits by
informers continued to exist in England until 1951, when all of the
remaining ones were repealed. See Note, The History and Development
of Qui Tam, 1972 Wash. U. L. Q. 81, 88, and n. 44 (citing Common
Informers Act, 14 & 15 Geo. VI, ch. 39 (1951)).
Qui tam actions appear to have been as prevalent in
America as in England, at least in the period immediately before
and after the framing of the Constitution. Although there is no
evidence that the Colonies allowed commonlaw
qui tam actions
(which, as we have noted, were dying out in England by that time),
they did pass several informer statutes expressly authorizing
qui tam suits. See,
e. g., Act for the
Restraining and Punishing of Privateers and Pirates, 1st Assembly,
4th Sess. (N. Y. 1692), reprinted in 1 Colonial Laws of New York
279, 281 (1894) (allowing informers to sue for, and receive share
of, fine imposed upon officers who neglect their duty to pursue
privateers and pirates). Moreover, immediately after the framing,
the First Congress enacted a considerable number of informer
statutes.5 Like their English counterparts, some of them
5 In addition, the First Congress passed one statute allowing
injured parties to sue for damages on both their own and the United
States' behalf. See Act of May 31, 1790, ch. 15, §2, 1 Stat.
124-125 (allowing author or proprietor to sue for and receive half
of penalty for violation of copyright); cf. Act of Mar. 1, 1790,
ch. 2, § 6, 1 Stat. 103 (allowing census taker to sue for and
receive half of penalty for failure to cooperate in census); Act of
July 5, 1790, ch. 25, § 1, 1 Stat. 129 (extending same to Rhode
Island).
777
provided both a bounty and an express cause of action; 6 others
provided a bounty only.7
We think this history well nigh conclusive with respect to the
question before us here: whether
qui tam actions were "cases
and controversies of the sort traditionally amenable to, and
resolved by, the judicial process."
Steel Co., 523
6 See Act of Mar. 1, 1790, ch. 2, § 3, 1 Stat. 102 (allowing
informer to sue for, and receive half of fine for, failure to file
census return); Act of July 5, 1790, ch. 25, § 1, 1 Stat. 129
(extending same to Rhode Island); Act of July 20, 1790, ch. 29, §§
1, 4, 1 Stat. 131, 133 (allowing private individual to sue for, and
receive half of fine for, carriage of seamen without contract or
illegal harboring of runaway seamen); Act of July 22, 1790, ch. 33,
§ 3, 1 Stat. 137-138 (allowing private individual to sue for, and
receive half of goods forfeited for, unlicensed trading with Indian
tribes); Act of Mar. 3, 1791, ch. 15, § 44, 1 Stat. 209 (allowing
person who discovers violation of spirits duties, or officer who
seizes contraband spirits, to sue for and receive half of penalty
and forfeiture, along with costs, in action of debt); cf. Act of
Apr. 30, 1790, ch. 9, §§ 16, 17, 1 Stat. 116 (allowing informer to
conduct prosecution, and receive half of fine, for criminal larceny
or receipt of stolen goods).
7 See Act of July 31, 1789, ch. 5, § 29, 1 Stat. 44-45 (giving
informer full penalty paid by customs official for failing to post
fee schedule); Act of Aug. 4, 1790, ch. 35, §55, 1 Stat. 173
(same); Act of July 31,1789, ch. 5, § 38, 1 Stat. 48 (giving
informer quarter of penalties, fines, and forfeitures authorized
under a customs law); Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat.
60 (same under a maritime law); Act of Aug. 4, 1790, ch. 35, § 69,
1 Stat. 177 (same under another customs law); Act of Sept. 2, 1789,
ch. 12, § 8, 1 Stat. 67 (providing informer half of penalty upon
conviction for violation of conflict-of-interest and bribery
provisions in Act establishing Treasury Department); Act of Mar. 3,
1791, ch. 8, § 1, 1 Stat. 215 (extending same to additional
Treasury employees); Act ofFeb. 25,1791, ch. 10, §§8, 9,1 Stat.
195-196 (providing informer half or fifth of fines resulting from
improper trading or lending by agents of Bank of United States);
cf. Act of Aug. 4, 1790, ch. 35, § 4, 1 Stat. 153 (apportioning
half of penalty for failing to deposit ship manifest to official
who should have received manifest, and half to collector in port of
destination).
We have suggested, in dictum, that "[sJtatutes providing for a
reward to informers which do not specifically either authorize or
forbid the informer to institute the action are construed to
authorize him to sue."
United States ex rel. Marcus v.
Hess, 317 U.
S. 537,541, n. 4 (1943).
778
u. S., at 102. When combined with the theoretical justification
for relator standing discussed earlier, it leaves no room for doubt
that a
qui tam relator under the FCA has Article III
standing.8 We turn, then, to the merits.
III
Petitioner makes two contentions: (1) that a State (or state
agency) is not a "person" subject to
qui tam liability under
the FCA; and (2) that if it is, the Eleventh Amendment bars such a
suit. The Courts of Appeals have disagreed as to the order in which
these statutory and Eleventh Amendment immunity questions should be
addressed. Compare
United States ex rel. Long v.
SCS
Business &
Technical Institute, Inc., 173 F.3d
890, 893-898
(CADC 1999) (statutory question first),
with
United States ex rel. Foulds v.
Texas Tech
Univ., 171 F.3d
279, 285-288
(CAS 1999) (Eleventh Amendment immunity
question first).
Questions of jurisdiction, of course, should be given
priority-since if there is no jurisdiction there is no authority to
sit in judgment of anything else. See
Steel Co., supra, at
93-102. "Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the
8 In so concluding, we express no view on the question whether
qui tam suits violate Article II, in particular the
Appointments Clause of § 2 and the "take Care" Clause of § 3.
Petitioner does not challenge the
qui tam mechanism under
either of those provisions, nor is the validity of
qui tam
suits under those provisions a jurisdictional issue that we must
resolve here. See
Steel Co. v.
Citizens for Better
Environment, 523
U. S. 83, 102, n. 4 (1998) ("[O]ur standing jurisprudence, ...
though it may sometimes have an impact on Presidential powers,
derives from Article III and not Article II"); see also
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 576578
(1992).
The dissent implicitly attacks us for "introduc[ing] [this
question]
sua sponte." Post, at 801. We raise the question,
however, only to make clear that it is not at issue in this case.
It is only the dissent that proceeds to volunteer an answer. See
post, at 801-802.
779
cause."
Ex parte McCardle, 7 Wall. 506, 514 (1869). Even
jurisdiction over the person (as opposed to subject-matter
jurisdiction) "is 'an essential element of the jurisdiction of a
district ... court,' without which the court is 'powerless to
proceed to an adjudication.'''
Ruhrgas AG v.
Marathon Oil
Co., 526 U. S.
574, 584 (1999) (quoting
Employers Reinsurance Corp. v.
Bryant, 299 U.
S. 374, 382 (1937)).
We nonetheless have routinely addressed
before the
question whether the Eleventh Amendment forbids a particular
statutory cause of action to be asserted against States, the
question whether the statute itself
permits the cause of
action it creates to be asserted against States (which it can do
only by clearly expressing such an intent). See,
e. g.,
Kimel v.
Florida Bd. of Regents, 528 U. S. 62, 73-78
(2000);
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 55-57
(1996); cf.
Hafer v.
Melo, 502 U. S. 21, 25-31
(1991);
Mt. Healthy City Bd. of Ed. v.
Doyle,
429 U. S. 274,
277-281 (1977). When these two questions are at issue, not only is
the statutory question "logically antecedent to the existence of"
the Eleventh Amendment question,
Amchem Products, Inc. v.
Windsor, 521
U. S. 591, 612 (1997), but also there is no realistic
possibility that addressing the statutory question will expand the
Court's power beyond the limits that the jurisdictional restriction
has imposed. The question whether the statute provides for suits
against the States (as opposed, for example, to the broader
question whether the statute creates any private cause of action
whatever, or the question whether the facts alleged make out a
"false claim" under the statute) does not, as a practical matter,
permit the court to pronounce upon any issue, or upon the rights of
any person, beyond the issues and persons that would be reached
under the Eleventh Amendment inquiry anyway. The ultimate issue in
the statutory inquiry is whether States can be sued under this
statute; and the ultimate issue in the Eleventh Amendment inquiry
is whether unconsenting States can be sued under this statute. This
combination of logical priority
780
and virtual coincidence of scope makes it possible, and indeed
appropriate, to decide the statutory issue first. We therefore
begin (and will end) with the statutory question.
The relevant provision of the FCA, 31 U. S. C. § 3729(a),
subjects to liability "[a]ny person" who,
inter alia,
"knowingly presents, or causes to be presented, to an officer or
employee of the United States Government ... a false or fraudulent
claim for payment or approval." We must apply to this text our
longstanding interpretive presumption that "person" does not
include the sovereign. See
United States v.
Cooper
Corp., 312 U. S.
600, 604 (1941);
United States v.
Mine Workers,
330 U. S. 258,
275 (1947).9 The
9 The dissent claims that, "[a]lthough general statutory
references to 'persons' are not normally construed to apply to the
enacting sovereign, when Congress uses that word in federal
statutes enforceable by the Federal Government or by a federal
agency, it applies to States and state agencies as well as to
private individuals and corporations."
Post, at 790
(citation omitted). The dissent cites three cases in support of
this assertion. None of them, however, involved a statutory
provision authorizing private suit against a State.
California v.
United States, 320 U. S. 577 (1944),
disregarded the presumption in a case brought against a State by
the Federal Government (and under a statutory provision authorizing
suit
only by the Federal Government). See
id., at
585-586.
United States v.
California, 297 U. S. 175 (1936),
found the presumption overcome in similar circumstances-and with
regard to a statute that used not the word "person," but rather the
phrase "common carrier." See
id., at 186-187. And
Georgia v.
Evans, 316 U. S. 159 (1942),
held that the presumption was overcome when, if a State were not
regarded as a "person" for purposes of
bringing an action
under § 7 of the Sherman Act, it would be left "without any redress
for injuries resulting from practices outlawed by that Act."
Id., at 162.
The dissent contends that "[t]he reason for presuming that an
enacting sovereign does not intend to authorize litigation against
itself simply does not apply to federal statutes that apply equally
to state agencies and private entities."
Post, at 798. That
is true enough, but in the American system there is a different
reason, equally valid. While the States do not have the immunity
against federally authorized suit that international law has
traditionally accorded foreign sovereigns, see
National City
Bank of N. Y. v.
Republic of China, 348 U. S. 356,358-359
(1955), they are sovereigns nonetheless, and both comity and
respect for our federal system
781
presumption is "particularly applicable where it is claimed that
Congress has subjected the States to liability to which they had
not been subject before."
Will v.
Michigan Dept. of State
Police, 491 U. S.
58, 64 (1989);
Wilson v.
Omaha Tribe, 442 U. S. 653, 667
(1979). The presumption is, of course, not a "hard and fast rule of
exclusion,"
Cooper Corp., supra, at 604-605, but it may be
disregarded only upon some affirmative showing of statutory intent
to the contrary. See
International Primate Protection League
v.
Administrators of Tulane Ed. Fund, 500 U. S. 72, 83
(1991).
As the historical context makes clear, and as we have often
observed, the FCA was enacted in 1863 with the principal goal of
"stopping the massive frauds perpetrated by large [private]
contractors during the Civil War."
United States v.
Bornstein, 423
U. S. 303, 309 (1976); see also
United States ex rel.
Marcus v.
Hess, 317 U. S. 537, 547
(1943).10 Its
demand that something more than mere use of the word "person"
demonstrate the federal intent to authorize unconsented private
suit against them. In any event, JUSTICE STEVENS fought and lost
this battle in
Will v.
Michigan Dept. of State
Police, 491 U. S.
58 (1989), in which the Court applied the presumption to a
federal statute when the "person" at issue was a State. See
id., at 64; but see
id., at 73 (Brennan, J.,
dissenting, joined by Marshall, Blackmun, and STEVENS, JJ.).
Moreover, JUSTICE STEVENS actually joined the Court's opinion in
Wilson v.
Omaha Tribe, 442 U. S. 653 (1979), in
which the Court likewise applied the presumption to a federal
statute in a case involving a State. See
id., at 667.
(Wilson is omitted from the dissent's discussion of "[c]ases
decided before 1986," which it claims "uniformly support" its
reading of the statute.
Post, at 790.)
10 The dissent contends that the FCA was "intended to cover the
full range of fraudulent acts, including those perpetrated by
States."
Post, at 793, and n. 4 (quoting
United
States v.
Neifert-White Co., 390 U. S. 228, 232
(1968);
Rainwater v.
United States, 356 U. S. 590, 592
(1958); H. R. Rep. No. 99-660, p. 18 (1985)). The sources the
dissent quotes, however, support its contention only as far as the
comma. They stand for the unobjectionable proposition (codified in
§ 3729(c)) that the FCA was intended to cover all types
offraud, not for the additional proposition that the FCA was
intended to cover all types of
fraudsters, including
States.
782
liability provision-the precursor to to day's § 3729(a)-bore no
indication that States were subject to its penalties. Indeed, far
from indicating that
States were covered, it did not even
make clear that
private corporations were, since it applied
only to "any person not in the military or naval forces of the
United States, nor in the militia called into or actually employed
in the service of the United States," and imposed criminal
penalties that included imprisonment.ll Act of Mar. 2, 1863, ch.
67, § 3, 12 Stat. 698. We do not suggest that these features
directed only at natural persons cast doubt upon the courts'
assumption that § 3729(a) extends to corporations, see,
e. g.,
United States ex rel. Woodard v.
Country View Care Center,
Inc., 797 F.2d
888, 890 (CAlO 1986)-but that is because the presumption with
regard to corporations is just the opposite of the one governing
here: they are presumptively
covered by the term "person,"
see 1 U. S. C. § 1. But the text of the original statute does less
than nothing to overcome the presumption that States are
not
covered.
Although the liability provision of the original FCA has
undergone various changes, none of them suggests a broadening of
the term "person" to include States. In 1982, Congress made a
housekeeping change, replacing the phrase "any person not in the
military or naval forces of the United States, nor in the militia
called into or actually employed in the service of the United
States" with the phrase "[a] person not a member of an armed force
of the United States," thereby incorporating the term of art
"member of an armed force" used throughout Title 10 of the United
States Code. 31 U. S. C. § 3729 (1982 ed.). And in 1986, Congress
eliminated the blanket exemption for members of the Armed Forces,
replacing the phrase "[a] person not a member of an
11 The criminal provision remains on the books and is currently
codified separately, as amended, at 18 U. S. C. § 287.
783
armed force of the United States" with the current "[a]ny
person." 31 U. S. C. § 3729(a).12
Several features of the current statutory scheme further support
the conclusion that States are not subject to
qui tam
liability. First, another section of the FCA, 31 U. S. C. § 3733,
which enables the Attorney General to issue civil investigative
demands to "any person ... possessi[ng] information relevant to a
false claims law investigation," § 3733(a)(1),
12 The dissent claims that "[t]he term 'person' in § 3729(a)
that we are interpreting today was enacted by the 1986 Congress,
not by the 1863 Congress."
Post, at 794, n. 5. But the term
"person" has remained in the statute unchanged since 1863; the 1986
amendment merely changed the modifier "[a]" to "[a]ny." This no
more caused the word "person" to include States than did the
replacement of the word "any" with "[a]" four years earlier. The
dissent's sole basis for giving the change from "[a]" to "[a]ny"
this precise and unusual consequence is a single sentence of
legislative history from the 1986 Congress. That would be unequal
to the task in any event, but as it happens the sentence was not
even describing the consequence of the proposed revision, but was
setting forth a Senate Committee's (erroneous) understanding of the
meaning of the statutory term enacted some 123 years earlier. The
paragraph in which the sentence appears discusses the FCA "[i]n its
present," i.
e., pre-1986, "form."
The dissent contradicts its contention that the "intent" of the
1986 Congress, rather than that of the 1863 Congress, controls
here, by relying heavily on a House Committee Report from 1862.
Post, at 791-792 (citing H. R. Rep. No.2, 37th Cong., 2d
Sess., pt. ii-a, pp. XXXVIII-XXXIX (1862)). Even for those disposed
to allow the meaning of a statute to be determined by a single
committee, that Report is utterly irrelevant, since it was not
prepared in connection with the 1863 Act, or indeed in connection
with any proposed false claims legislation. In repeating the Second
Circuit's unsupported assertion that Congress must have had this
Report in mind a year later when it enacted the FCA, the dissent
asks us to indulge even a greater suspension of disbelief than
legislative history normally requires. And finally, this irrelevant
committee Report does not provide the promised support for the view
that "[t]he False Claims Act is ... as capable of being violated by
state as by individual action,"
post, at 791. The cited
portion details a single incident of fraud by a state
official against a
State, not an incident of fraud by
a State against the Federal Government.
784
contains a provision expressly defining "person," "[f]or
purposes of this section," to include States, §
3733(l)(4).13 The presence of such a definitional provision
in § 3733, together with the absence of such a provision from the
definitional provisions contained in § 3729, see §§ 3729(b)-(c),
suggests that States are not "persons" for purposes of
qui
tam liability under § 3729.14
Second, the current version of the FCA imposes damages that are
essentially punitive in nature, which would be in-
13 The dissent points out that the definition of "person" in §
3733(l)( 4) also applies to §
3733(l)(2), a definitional
provision which defines the phrase "false claims law investigation"
as "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." See
post,
at 789, 795. But the effect of assuming a State to be a "person"
for purposes of that definitional section is
not to embrace
investigations of States within the definition. A "false claims
investigation" will
still not include an investigation of a
State, since whether a "person"
(however broadly defined)
"is or has been engaged in any violation of a false claims law"
depends on whether that person is
subject to the "false
claims law," which refers us back to § 3729, to which §
3733(l)(4)'s definition of "person" is explicitly made
inapplicable. What the application of §
3733(l)(4) to §
3733(l)(2) does achieve is to subject States,
not to
qui tam liability, but to civil investigative demands. That
is entirely appropriate, since States will often be able to provide
useful evidence in investigations of private contractors.
14 The dissent contends that our argument "prove[s] too much,"
since the definition of "person" in §
3733(l)(4) includes
not just States, but also "any natural person, partnership,
corporation, association, or other legal entity"; under our
reasoning, it contends, all of those entities would
also be
excluded from the definition of "person" under § 3729.
Post,
at 799. That is not so. Unlike States, all of those entities are
presumptively
covered by the term "person." See 1 U. S. C. §
1. The
addition of States to 31 U. S. C. § 3733, and the
failure to add States to § 3729, suggests that States are not
subject to
qui tam liability under § 3729.
The dissent attempts to explain the absence of a definitional
provision in § 3729 by suggesting that Congress "simply saw no need
to add a definition of 'person' in § 3729 because ... the meaning
of the term 'person' was already well understood."
Post, at
799. If that were so, and if the "understanding" included States,
there would have been no need to include a definition of "person"
in § 3733.
785
consistent with state
qui tam liability in light of the
presumption against imposition of punitive damages on governmental
entities. See,
e. g., Newport v.
Fact Concerts, Inc.,
453 U. S. 247,
262-263 (1981).15 Although this Court suggested that damages under
an earlier version of the FCA were remedial rather than punitive,
see
Bornstein, 423 U. S., at 315; but see
Smith v.
Wade, 461 U. S.
30, 85 (1983) (REHNQUIST, J., dissenting), that version of the
statute imposed only double damages and a civil penalty of $2,000
per claim, see 31 U. S. C. § 231 (1976 ed.); the current version,
by contrast, generally imposes treble damages and a civil penalty
of up to $10,000 per claim, see 31 U. S. C. § 3729(a).16 Cf.
Marcus, 317 U. S., at 550 (noting that double damages in
15 The dissent attempts to distinguish
Newport on the
basis of a single sentence in that opinion stating that "courts
vie[w] punitive damages [against governmental bodies] as contrary
to sound public policy, because such awards would burden the very
taxpayers and citizens for whose benefit the wrongdoer was being
chastised."
Newport v.
Fact Concerts, Inc., 453 U.
S., at 263. The dissent contends that
Newport is
inapplicable where, as here, "[t]he taxpaying 'citizens for whose
benefit' the [statute] is designed are the citizens of the United
States, not the citizens of any individual State that might violate
the [statute]."
Post, at 801. The problem with this is that
Rev. Stat. § 1979, 42 U. S. C. § 1983-the statute at issue in
Newport-is, like the FCA, a federal law designed to benefit
"the citizens of the United States, not the citizens of any
individual State that might violate the [statute]." A better
reading of
Newport is that we were concerned with imposing
punitive damages on taxpayers under any circumstances. "'[Punitive
damages], being evidently vindictive, cannot, in our opinion, be
sanctioned by this court, as they are to be borne by widows,
orphans, aged men and women, and strangers, who, admitting that
they must repair the injury inflicted by the Mayor on the
plaintiff, cannot be bound beyond that amount, which will be
sufficient for her indemnification.'''
Newport, supra, at
261 (quoting
McGary v.
President &
Council of City of Lafayette, 12 Rob. 668, 677 (La.
1846)).
16 As the dissent correctly points out, see
post, at 801,
n. 11, treble damages may be reduced to double damages in certain
cases, see § 3729(a). This exception, however, applies only in some
of those (presumably few) cases involving defendants who provide
information concerning the violation before they have knowledge
that an investigation is underway. See
ibid.
786
original FCA were not punitive, but suggesting that treble
damages, such as those in the antitrust laws, would have been).
"The very idea of treble damages reveals an intent to punish past,
and to deter future, unlawful conduct, not to ameliorate the
liability of wrongdoers."
Texas Industries, Inc. v.
Radcliff Materials, Inc., 451 U. S. 630, 639
(1981).
Third, the Program Fraud Civil Remedies Act of 1986 (PFCRA), a
sister scheme creating administrative remedies for false claims-and
enacted just before the FCA was amended in 1986-contains (unlike
the FCA) a definition of "persons" subject to liability, and that
definition does not include States. See 31 U. S. C. § 3801(a)(6)
(defining "person" as "any individual, partnership, corporation,
association, or private organization"). It would be most peculiar
to subject States to treble damages and civil penalties in
qui
tam actions under the FCA, but exempt them from the relatively
smaller damages provided under the PFCRA. See § 3802(a)(1).17
17The dissent attempts to distinguish the PFCRA on the ground
that it is a separate and subsequently enacted statute. See
post, at 799-800, and n. 10. But it is well established that
a court can, and should, interpret the text of one statute in the
light of text of surrounding statutes, even those subsequently
enacted. See
FDA v.
Brown &
Williamson Tobacco
Corp., ante, at 133;
United States v.
Fausto,
484 U. S. 439,
453 (1988). Moreover, there is no question that the PFCRA was
designed to operate in tandem with the FCA. Not only was it enacted
at virtually the same time as the FCA was amended in 1986, but its
scope is virtually identical to that of the FCA. Compare § 3729(a)
(FCA) ("Any person who ... knowingly presents, or causes to be
presented, to an officer or employee of the United States
Government ... a false or fraudulent claim for payment or approval
... ") with § 3802(a)(1) (PFCRA) ("Any person who makes, presents,
or submits, or causes to be made, presented, or submitted, a claim
that the person knows or has reason to know ... is false,
fictitious, or fraudulent ... "). The dissent would, in any event,
subject States to suit under the PFCRA no less than under the
FCA-despite its detailed definition of "person" that does not
include States. In justification of this the dissent again cites
California v.
United States, 320 U. S.,
787
In sum, we believe that various features of the FCA, both as
originally enacted and as amended, far from providing the requisite
affirmative indications that the term "person" included States for
purposes of
qui tam liability, indicate quite the contrary.
Our conclusion is buttressed by two other considerations that we
think it unnecessary to discuss at any length: first, "the ordinary
rule of statutory construction" that "if Congress intends to alter
the usual constitutional balance between States and the Federal
Government, it must make its intention to do so unmistakably clear
in the language of the statute,"
Will, 491 U. S., at 65
(internal quotation marks and citation omitted); see also
Gregory v.
Ashcroft, 501 U. S. 452, 460-461
(1991);
United States v.
Bass, 404 U. S. 336, 349
(1971), and second, the doctrine that statutes should be construed
so as to avoid difficult constitutional questions. We of course
express no view on the question whether an action in federal court
by a
qui tam relator against a State would run afoul of the
Eleventh Amendment, but we note that there is "a serious doubt" on
that score.
Ashwander v.
TV A, 297 U. S. 288, 348 (1936)
(Brandeis, J., concurring) (internal quotation marks and citation
omitted).18
***
We hold that a private individual has standing to bring suit in
federal court on behalf of the United States under the False Claims
Act, 31 U. S. C. §§ 3729-3733, but that the
at 585, and
Evans, 316 U. S., at 160. In addition to
being inapposite because they did not authorize suits against
States by private parties, see n. 9,
supra, the definitions
of "person" in the statutes at issue in those cases were not as
detailed as that of the PFCRA, and set forth what the term "person"
included, rather than, as the PFCRA does, what the term
"person"
"means," see 31 U. S. C. §3801(a)(6) (emphasis
added).
18 Although the dissent concludes that States can be "persons"
for purposes of
commencing an FCA
qui tam action
under § 3730(b), see
post, at 794-795, we need not resolve
that question here, and therefore leave it open.
788
GINSBURG, J., concurring in judgment
False Claims Act does not subject a State (or state agency) to
liability in such actions. The judgment of the Second Circuit is
reversed.
It is so ordered.
JUSTICE BREYER, concurring.
I join the opinion of the Court in full. I also join the opinion
of JUSTICE GINSBURG.
JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring in
the judgment.
I join the Court's judgment and here state the extent to which I
subscribe to the Court's opinion.
I agree with the Court that the
qui tam relator is
properly regarded as an assignee of a portion of the Government's
claim for damages. See
ante, at 773. And I agree, most
vitally, that "Article Ill's restriction of the judicial power to
'Cases' and 'Controversies' is properly understood to mean 'cases
and controversies of the sort traditionally amenable to, and
resolved by, the judicial process.'"
Ante, at 774. On that
key matter, I again agree that history's pages place the
qui
tam suit safely within the "case" or "controversy" category.
See
ante, at 774-778.
In
Steel Co. v.
Citizens for Better Environment,
523 U. S. 83
(1998), I reasoned that if Congress did not authorize a citizen
suit, a court should dismiss the citizen suitor's complaint without
opining "on the constitutionality of what Congress might have done,
but did not do."
Id., at 134 (opinion concurring in
judgment). I therefore agree that the Court properly turns first to
the statutory question here presented:
Did Congress authorize
qui tam suits against the States.
Concluding that Congress did not authorize such suits, the Court
has no cause to engage in an Eleventh Amendment inquiry, and
appropriately leaves that issue open.
I do not find in the False Claims Act any clear statement
subjecting the States to
qui tam suits brought by
private
789
parties, and therefore concur in the Court's resolution of the
statutory question. See
ante, at 787-788. I note, however,
that the clear statement rule applied to private suits against a
State has not been applied when the United States is the plaintiff.
See,
e. g., Sims v.
United States,
359 U. S. 108,
112 (1959) (state agency ranks as a "person" subject to suit by the
United States under federal tax levy provision);
United
States v.
California, 297 U. S. 175, 186-187
(1936) (stateowned railway ranks as a "common carrier" under
Federal Safety Appliance Act subject suit for penalties by the
United States). I read the Court's decision to leave open the
question whether the word "person" encompasses States when the
United States itself sues under the False Claims Act.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting.
In 1986, Congress amended the False Claims Act (FCA or Act) to
create a new procedure known as a "civil investigative demand,"
which allows the Attorney General to obtain documentary evidence
"for the purpose of ascertaining whether any person is or has been
engaged in" a violation of the Act-including a violation of 31 U.
S. C. § 3729. The 1986 amendments also declare that a "person" who
could engage in a violation of § 3729-thereby triggering the civil
investigative demand provision-includes "any State or political
subdivision of a State." See § 6(a), 100 Stat. 3168 (codified at 31
U. S. C. §§
3733(l)(1)(A), (2), (4)). In my view, this
statutory text makes it perfectly clear that Congress intended the
term "person" in § 3729 to include States. This understanding is
supported by the legislative history of the 1986 amendments, and is
fully consistent with this Court's construction of federal statutes
in cases decided before those amendments were enacted.
Since the FCA was amended in 1986, however, the Court has
decided a series of cases that cloak the States with an
increasingly protective mantle of "sovereign immunity" from
790
STEVENS, J., dissenting
liability for violating federal laws. It is through the lens of
those post-1986 cases that the Court has chosen to construe the
statute at issue in this case. To explain my disagreement with the
Court, I shall comment on pre-1986 cases, the legislative history
of the 1986 amendments, and the statutory text of the FCA-all of
which support the view that Congress understood States to be
included within the meaning of the word "person" in § 3729. I shall
then briefly explain why the State's constitutional defenses fail,
even under the Court's post-1986 construction of the doctrine of
sovereign immunity.
I
Cases decided before 1986 uniformly support the proposition that
the broad language used in the FCA means what it says. Although
general statutory references to "persons" are not normally
construed to apply to the enacting sovereign,
United States
v.
Mine Workers, 330 U. S. 258, 275
(1947), when Congress uses that word in federal statutes
enforceable by the Federal Government or by a federal agency, it
applies to States and state agencies as well as to private
individuals and corporations. Thus, for example, the word "person"
in the Sherman Act does not include the sovereign that enacted the
statute (the Federal Government),
United States v.
Cooper
Corp., 312 U. S.
600 (1941), but it does include the States,
Georgia v.
Evans, 316 U.
S. 159 (1942). Similarly, States are subject to regulation as a
"person" within the meaning of the Shipping Act of 1916,
California v.
United States, 320 U. S. 577 (1944), and
as a "common carrier" within the meaning of the Safety Appliance
Act,
United States v.
California, 297 U. S. 175 (1936). In
the latter case, the State of California "invoke[d] the canon of
construction that a sovereign is presumptively not intended to be
bound" by a statute unless the Act expressly declares that to be
the case.
Id., at 186. We rejected the applicability of that
canon, stating:
791
"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, allembracing in scope and
national in its purpose, which is as capable of being obstructed by
state as by individual action. Language and objectives so plain are
not to be thwarted by resort to a rule of construction whose
purpose is but to resolve doubts, and whose application in the
circumstances would be highly artificial." Id., at
186-187.1
The False Claims Act is also all-embracing in scope, national in
its purpose, and as capable of being violated by state as by
individual action.2 It was enacted during the Civil War, shortly
after a congressional committee
IThe difference between the post-1986 lens through which the
Court views sovereign immunity issues, on the one hand, and the
actual intent of Congress in statutes like the one before us today,
on the other hand, is well illustrated by the congressional
rejection of the holdings in
Hoffman v.
Connecticut Dept.
of Income Maintenance, 492 U. S. 96 (1989), and
United States v.
Nordic Village, Inc., 503 U. S. 30 (1992). In
those cases, the Court refused to find the necessary unequivocal
waiver of sovereign immunity against both the States and the
Federal Government in § 106(c) of the Bankruptcy Code.
Congress, however, thought differently: "In enacting section
106(c), Congress intended ... to make the States subject to a money
judgment. But the Supreme Court in
Hoffman v.
Connecticut
Department of Income Maintenance, 492 U. S. 96 (1989), held
[otherwise.] In using such a narrow construction, the Court ... did
not find in the text of the statute an 'unmistakenly clear' intent
of Congress to waive sovereign immunity .... The Court applied this
reasoning in
United States v.
Nordic Village, Inc."
See 140 Congo Rec. 27693 (1994). Congress therefore overruled both
of those decisions by enacting the current version of 11 U. S. C. §
106.
2 It is thus at the opposite pole from the statute construed in
Wilson V.
Omaha Tribe, 442 U. S. 653 (1979),
which held that the term "white person" did not include the State
of Iowa because "it is apparent that in adopting § 22 Congress had
in mind only disputes arising in Indian country, disputes that
would not arise in or involve any of the States."
Id., at
668.
792
STEVENS, J., dissenting
had decried the "fraud and peculation" by state officials in
connection with the procurement of military supplies and Government
contracts-specifically mentioning the purchases of supplies by the
States of Illinois, Indiana, New York, and Ohio. See H. R. Rep.
No.2, 37th Cong., 2d Sess., pt. ii-a, pp. XXXVIII-XXXIX (1862).
Although the FCA was not enacted until the following year, the
Court of Appeals for the Second Circuit correctly observed that "it
is difficult to suppose that when Congress considered the bills
leading to the 1863 Act a year later it either meant to exclude the
States from the 'persons' who were to be liable for presentation of
false claims to the federal government or had forgotten the results
of this extensive investigation."
162 F.3d
195, 206 (1998). That observation is faithful to the broad
construction of the Act that this Court consistently endorsed in
cases decided before 1986 (and hardly requires any "suspension of
disbelief" as the majority supposes,
ante, at 783, n.
12).
Thus, in
United States v.
Neifert-White Co.,
390 U. S. 228,
232 (1968), after noting that the Act was passed as a result of
investigations of the fraudulent use of federal funds during the
Civil War, we inferred "that the Act was intended to reach all
types of fraud, without qualification, that might result in
financial loss to the Government." See also
Rainwater v.
United States, 356 U. S. 590, 592 (1958)
("It seems quite clear that the objective of Congress [in the FCA]
was broadly to protect the funds and property of the Government
from fraudulent claims"); H. R. Rep. No. 99-660, p. 18 (1986)
("[T]he False Claims Act is used as ... the primary vehicle by the
Government for recouping losses suffered through fraud"). Indeed,
the fact that Congress has authorized
qui tam actions by
private individuals to supplement the remedies available to the
Federal Government provides additional evidence of its intent to
reach all types of fraud that cause financial loss to the Federal
Government. Finally, the
793
breadth of the "claims" to which the FCA applies 3 only confirms
the notion that the law was intended to cover the full range of
fraudulent acts, including those perpetrated by States.4
The legislative history of the 1986 amendments discloses that
both federal and state officials understood that States were
"persons" within the meaning of the statute. Thus, in a section of
the 1986 Senate Report describing the history of the Act, the
committee unequivocally stated that the Act reaches all parties who
may submit false claims and 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." S. Rep. No. 99345, pp. 8-9.5
3 Title 31 U. S. C. § 3729(c) reads: "For purposes of this
section, 'claim' includes any request or demand, whether under a
contract or otherwise, for money or property which is made to a
contractor, grantee, or other recipient if the United States
Government provides any portion of the money or property which is
requested or demanded, or if the Government will reimburse such
contractor, grantee, or other recipient for any portion of the
money or property which is requested or demanded."
4 When Congress amended the FCA in 1986, it noted that
"[e]vidence of fraud in Government programs and procurement is on a
steady rise." H. R. Rep. No. 99-660, at 18. And at that time,
federal grants to state and local governments had totaled over $108
billion. See U. S. Dept. of Commerce National Data Book and Guide
to Sources, Statistical Abstract of the United States 301 (108th
ed. 1988) (compiling data from 1986). It is therefore difficult to
believe, as the Court contends, that Congress intended "to cover
all types of
fraud, [but not] all types of
fraudsters,"
ante, at 781, n. 10, a conclusion that would exclude from
coverage such a large share of potential fraud.
5 Petitioner argues that the Senate Report's statement was
simply inaccurate, because the three cases to which the Report
cited for support did not interpret the meaning of the word
"person" in the FCA. Brief for Petitioner 25-26. The cases stand
for the proposition that the statutory term "person" may include
States and local governments-exactly the proposition I have
discussed above. See
supra, at 790. Petitioner's observation
that none of the cases cited is directly on point only
indicates
794
STEVENS, J., dissenting
Indeed, a few federal courts had accepted jurisdiction in
qui
tam cases brought by the States-thus indicating their view that
States were included among the "persons" who may bring
qui
tam actions as relators under § 3730(b)(1). See
United
States ex rel. Woodard v.
Country View Care Center,
Inc., 797 F.2d
888 (CAlO 1986);
United States ex rel. Wisconsin v.
Dean, 729 F.2d
1100 (CA7 1984); see also
United States ex rel.
Hartigan v.
Palumbo Bros., Inc., 797 F. Supp. 624 (ND
Ill. 1992). Not only do these cases express the view of those
federal judges who thought a State could be a "person" under §
3730(b)(1), but the cases also demonstrate that the States
considered themselves to be statutory "persons." In fact, in the
Dean case, the United States filed a statement with the
court explicitly stating its view that "[t]he State is a proper
relator." 729 F. 2d, at 1103, n. 2. And when the Seventh Circuit in
that case dismissed Wisconsin's
qui tam claim on grounds
unrelated to the definition
that the Senate's understanding was based on an analogy rather
than on controlling precedent.
Petitioner further argues that the text of the FCA as it was
originally enacted in 1863 could not have included States as
"persons," and therefore the Senate's understanding of the pre-1986
Act was erroneous. See also
ante, at 778. Assuming for
argument's sake that the Senate incorrectly ascertained what
Congress meant in 1863, petitioner's argument is beside the point.
The term "person" in § 3729(a) that we are interpreting today was
enacted by the 1986 Congress, not by the 1863 Congress. See 100
Stat. 3153 (deleting entirely the previously existing introductory
clause in § 3729, including the phrase "[a] person not a member of
an armed force of the United States" and replacing it with the new
phrase "[a]ny person"). Therefore, even if the 1986 Congress were
mistaken about what a
previous Legislature had meant by the
word "person," it clearly expressed its own view that when the 1986
Congress itself enacted the word "person" (and not merely
the word "any" as the Court insists,
ante, at 783, n. 12),
it meant the reference to include States. There is not the least
bit of contradiction (as the Court suggests,
ibid.) in one
Congress informing itself of the general understanding of a
statutory term it enacts based on its own (perhaps erroneous)
understanding of what a past Congress thought the term meant.
795
of the word "person," the National Association of Attorneys
General adopted a resolution urging Congress to make it easier for
States to be relators.6 When Congress amended the FCA in 1986-and
enacted the word "person" in § 3729 at issue here-it had all of
this information before it, i.
e., that federal judges had
accepted States as relators (and hence as "persons"); that the
States considered themselves to be statutory "persons" and wanted
greater freedom to be "persons" who could sue under the Act; and
that the United States had taken a like position. See S. Rep. No.
99-345, at 12-13.
In sum, it is quite clear that when the 1986 amendments were
adopted, there was a general understanding that States and state
agencies were "persons" within the meaning of the Act.
II
The text of the 1986 amendments confirms the pre-existing
understanding. The most significant part of the amendments is the
enactment of a new § 3733 granting authority to the Attorney
General to issue a civil investigative demand (CID) before
commencing a civil proceeding on behalf of the United States. A
series of interwoven definitions in § 3733 unambiguously
demonstrates that a State is a "person" who can violate § 3729.
Section 3733 authorizes the Attorney General to issue a CID when
she is conducting a "false claims law investigation." § 3733(a). A
"false claims law investigation" is defined as an investigation
conducted "for the purpose of ascertaining whether
any
person is or has been engaged in any violation of a false
claims law." §
3733(l)(2) (emphasis added). And a "false
claims law" includes § 3729-the provision at issue in this case. §
3733(l)(1)(A). Quite plainly, these provisions contemplate
that any "person" may be en-
6 Congress adopted the suggestion of the Attorneys General in §
3730(e)(4)(A).
796
STEVENS, J., dissenting
gaged in a violation of § 3729. Finally, a "person" is defined
to include "any State or political subdivision of a State." §
3733(l)(4). Hence, the CID provisions clearly state that a
"person" who may be "engaged in any violation of a false claims
law," including § 3729, includes a "State or a political
subdivision of a State." 7 These CID provisions thus unmistakably
express Congress' understanding that a State may be a "person" who
can violate § 3729.
Elsewhere in the False Claims Act the term "person" includes
States as well. For example, § 3730 of the Actboth before and after
the 1986 amendments-uses the word "person" twice. First, subsection
(a) of § 3730 directs the Attorney General to investigate
violations of § 3729, and provides that if she "finds that a
person has violated or is violating" that section, she may
bring a civil action "under this section against the
person." (Emphases added.) Second, subsection (b) of § 3730
also uses the word "person," though for a different purpose; in
that subsection the word is used to describe the plaintiffs who may
bring
qui tam actions on behalf of themselves and the United
States.
Quite clearly, a State is a "person" against whom the Attorney
General may proceed under § 3730(a).8 And as I noted earlier, see
supra, at 794, before 1986 States were considered "persons"
who could bring a
qui tam action as a relator under §
3730(b)-and the Court offers nothing to question that
understanding. See
ante, at 787, n. 18. Moreover, when a
qui tam relator brings an action on behalf of the United
States, he or she is, in effect, authorized to act as an assignee
of the Federal Government's claim. See
ante, at 773. Given
that understanding, combined with the fact
7 Because this concatenation of definitions expressly references
and incorporates § 3729, it is no answer that the definitions
listed in § 3733 apply, by their terms, "[f]or the purposes of" §
3733.
8JUSTICE GINSBURG, who joins in the Court's judgment, is careful
to point out that the Court does not disagree with this reading of
§ 3730(a).
Ante, at 789.
797
that § 3730(a) does not make any distinction between possible
defendants against whom the Attorney General may bring an action,
the most normal inference to draw is that
qui tam actions
may be brought by relators against the same category of "persons"
that may be sued by the Attorney General.
To recapitulate, it is undisputed that (under the CID provision)
a State is a "person" who may violate § 3729; that a State is a
"person" who may be named as a defendant in an action brought by
the Attorney General; and that a State is a "person" who may bring
a
qui tam action on behalf of the United States. It
therefore seems most natural to read the adjacent uses of the term
"person" in §§ 3729, 3730(a), 3730(b), and 3733 to cover the same
category of defendants. See
United States v.
Cooper
Corp., 312 U. S., at 606 ("It is hardly credible that Congress
used the term 'person' in different senses in the same sentence").
And it seems even more natural to read the single word "person"
(describing who may commit a violation under § 3729) to have one
consistent meaning regardless of whether the action against that
violator is brought under § 3730(a) or under § 3730(b). See
Ratzlaf v.
United States, 510 U. S. 135, 143 (1994)
("A term appearing in several places in a statutory text is
generally read the same way each time it appears. We have even
stronger cause to construe a single formulation ... the same way
each time it is called into play" (citation omitted)). Absent
powerful arguments to the contrary, it should follow that a State
may be named as a defendant in an action brought by an assignee of
the United States. Rather than pointing to any such powerful
arguments, however, the Court comes to a contrary conclusion on the
basis of an inapplicable presumption and rather strained inferences
drawn from three different statutory provisions.
The Court's principal argument relies on "our longstanding
interpretive presumption that 'person' does not include the
sovereign."
Ante, at 780. As discussed earlier, that
798
STEVENS, J., dissenting
"presumption" does not quite do the heavy lifting the Court
would like it to do. What's more, the doctrinal origins of that
"presumption" meant only that the
enacting sovereign was not
normally thought to be a statutory "person." See,
e. g., United
States v.
California, 297 U. S., at 186 ("[T]he canon of
construction that a sovereign is presumptively not intended to be
bound by its own statute unless named in it ... has its historical
basis in the English doctrine that the Crown is unaffected by acts
of Parliament not specifically directed against it. The presumption
is an aid to consistent construction of statutes of the
enacting
sovereign when their purpose is in doubt" (emphasis added));
see also
United States v.
Mine Workers, 330 U. S., at
275;
United States v.
Fox, 94 U. S. 315, 321 (1877);
Will v.
Michigan Dept. of State Police, 491 U. S. 58, 73 (1989)
(Brennan, J., dissenting). The reason for presuming that an
enacting sovereign does not intend to authorize litigation against
itself simply does not apply to federal statutes that apply equally
to state agencies and private entities. Finally, the "affirmative
showing" the Court would require to demonstrate that the word
"person" includes States,
ante, at 781, is plainly found in
the statutory text discussed above.
The Court's first textual argument is based on the fact that the
definition of the term "person" included in § 3733's CID provision
expressly includes States. "The presence of such a definitional
provision in § 3733," the Court argues, "together with the absence
of such a provision from the definitional provisions contained in §
3729 ... suggests that States are not 'persons' for purposes of
qui tam liability under § 3729."
Ante, at 784.
Leaving aside the fact that § 3733's definition actually cuts in
the opposite direction, see
supra, at 795-796, this argument
might carry some weight if the definitional provisions in § 3729
included
some definition of "person" but simply neglected to
mention States. But the definitional provisions in § 3729 do not
in-
799
clude any definition of "person" at all. The negative inference
drawn by the Court, if taken seriously, would therefore prove too
much. The definition of "person" in § 3733 includes not only
States, but also "any natural person, partnership, corporation,
association, or other legal entity." §
3733(l)(4). If the
premise of the Court's argument were correct-that the inclusion of
certain items as a "person" in § 3733 implies their exclusion as a
"person" in § 3729-then there would be
absolutely no one
left to be a "person" under § 3729.9 It is far more reasonable
to assume that Congress simply saw no need to add a definition of
"person" in § 3729 because (as both the legislative history, see
supra, at 791795, and the definitions in the CID provisions
demonstrate) the meaning of the term "person" was already well
understood. Congress likely thought it unnecessary to include a
definition in § 3729 itself.
The Court also relies on the definition of "person" in a
separate, but similar, statute, the Program Fraud Civil Remedies
Act of 1986 (PFCRA).
Ante, at 786. The definition of
"person" found in that law includes "any individual, partnership,
corporation, association, or private organization." 31 U. S. C. §
3801(a)(6). It is first worth pointing out the obvious: Although
the PFCRA sits next to the FCA in the United States Code, they are
separate statutes. It is therefore not altogether clear why the
former has much bearing on the latter.1o Regardless, the Court's
whole argument
9 Not so, the Court says, because natural persons and other
entities, unlike States, are
presumed to be included within
the term "person."
Ante, at 784, n. 14. In other words, this
supposedly independent textual argument does nothing on its own
without relying entirely on the presumption already discussed. See
supra, at 797-798;
ante, at 780784. The negative
inference adds nothing on its own.
10 Indeed, reliance on the PFCRA seems to contradict the Court's
central premise-that in 1863 the word "person" did not include
States and that scattered intervening amendments have done nothing
to change that.
Ante, at 781-782. If that were so, the
relevant meaning of the word
800
STEVENS, J., dissenting
about the PFCRA rests entirely on the premise that its
definition of "person" does not include States. That premise, in
turn, relies upon the fact that § 3801(a)(6) in the PFCRA defines a
"person" to include "any individual, partnership, corporation,
association, or private organization," but does not mention States.
We have, however, interpreted similar definitions of "person,"
which included corporations, partnerships, and associations, to
include States as well, even though States were not expressly
mentioned in the statutory definition. See
California v.
United States, 320 U. S., at 585;
Georgia v.
Evans, 316 U. S., at 160. (I draw no definitive conclusions
as to whether States are subject to suit under the PFCRA; I only
mean to suggest that the Court's premise is not as obvious as it
presumes it to be.) In any event, the ultimate relevant question is
whether the text and legislative history
of the FCA make it
clear that § 3729's use of the word "person" includes States.
Because they do, nothing in any other piece of legislation narrows
the meaning of that term.
Finally, the Court relies on the fact that the current version
of the FCA includes a treble damages remedy that is "essentially
punitive in nature."
Ante, at 784. Citing
Newport v.
Fact Concerts, Inc., 453 U. S. 247, 262-263
(1981), the Court invokes the "presumption against imposition of
punitive damages on governmental entities."
Ante, at 785.
But as
Newport explains, "courts vie[w] punitive damages
[against governmental bodies] as contrary to sound public policy,
because such awards would burden the very tax-
"person" would be the meaning adopted by the 1863 Congress, not
the 1986 Congress. And on that premise, why should it matter what a
different Congress, in a different century, did in a separate
statute? Of course, as described earlier, see n. 5,
supra, I
believe it is the 1986 Congress' understanding of the word "person"
that controls, because it is that word
as enacted by the
1986
Congress that we are interpreting in this case. But on
the Court's premise, it is the 1863 Congress' understanding that
controls and the PFCRA should be irrelevant.
801
payers and citizens for whose benefit the wrongdoer was being
chastised." 453 U. S., at 263. That rationale is inapplicable here.
The taxpaying "citizens for whose benefit" the FCA is designed are
the citizens of the United States, not the citizens of any
individual State that might violate the Act. It is true, of course,
that the taxpayers of a State that violates the FCA will ultimately
bear the burden of paying the treble damages. It is not the coffers
of the State (and hence state taxpayers), however, that the FCA is
designed to protect, but the coffers of the National Government
(and hence the federal taxpayers). Accordingly, a treble damages
remedy against a State does not "burden the very taxpayers" the
statute was designed to protect.ll
III
Each of the constitutional issues identified in the Court's
opinion requires only a brief comment. The historical evidence
summarized by the Court,
ante, at 774-778, is obviously
sufficient to demonstrate that
qui tam actions are "cases"
or "controversies" within the meaning of Article III. That
evidence, together with the evidence that private prosecutions were
commonplace in the 19th century, see
Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, 127-128, and
nn. 24-25 (1998) (STEVENS, J., concurring in judgment), is also
sufficient to resolve the Article II question that the Court has
introduced
sua sponte, ante, at 778, n. 8.
As for the State's "Eleventh Amendment" sovereign immunity
defense, I adhere to the view that
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44 (1996), was wrongly decided. See
Kimel v.
Florida Bd. of Regents, 528 U. S. 62, 97-99 (2000)
(STEVENS, J., dissenting);
Seminole Tribe, 517 U. S., at
100-185 (SOUTER, J., dissenting). Accordingly, Congress' clear
intention to subject States to
qui tam actions is also
11 It is also worth mentioning that treble damages may be
reduced to double damages if the court makes the requisite findings
under §§ 3729(a)(7)(A)-(C).
802
STEVENS, J., dissenting
sufficient to abrogate any common-law defense of sovereign
immunity. Moreover, even if one accepts
Seminole Tribe as
controlling, the State's immunity claim would still fail. Given the
facts that (1) respondent is, in effect, suing as an assignee of
the United States,
ante, at 773; (2) the Eleventh Amendment
does not provide the States with a defense to claims asserted by
the United States, see,
e. g., United States v.
Mississippi, 380 U. S. 128, 140 (1965)
("[N]othing in [the Eleventh Amendment] or any other provision of
the Constitution prevents or has ever been seriously supposed to
prevent a State's being sued by the United States"); and (3) the
Attorney General retains significant control over a relator's
action, see 162 F. 3d, at 199-201 (case below), the Court of
Appeals correctly affirmed the District Court's order denying
petitioner's motion to dismiss. Compare
New Hampshire v.
Louisiana, 108
U. S. 76 (1883), with
South Dakota v.
North
Carolina, 192 U.
S. 286 (1904).12 I would, accordingly, affirm the judgment of
the Court of Appeals.
12 The agency argues that this is essentially an "end run"
around the Eleventh Amendment. Brief for Petitioner 33. It is not
at all clear to me, though, why a
qui tam action would be
considered an "end run" around that Amendment, yet precisely the
same form of action is not an "end run" around Articles II and
III.
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