Carol Rae Cooper Foulds v. Texas Tech University

REVISED - April 1, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-11182
_____________________

UNITED STATES OF AMERICA, EX REL.,

Plaintiff-Intervenor,

CAROL RAE COOPER FOULDS,

Plaintiff-Appellee,

versus

TEXAS TECH UNIVERSITY, ET AL.,

Defendants,

TEXAS TECH UNIVERSITY; TEXAS TECH
UNIVERSITY HEALTH SCIENCE CENTER,

Defendants-Appellants.
_________________________________________________________________

Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
March 29, 1999
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal speaks of a qui tam action brought by Carol Rae

Cooper Foulds, on behalf of the United States, against Texas Tech

University and Texas Tech University Health Sciences Center for

violations of the False Claims Act, 31 U.S.C. § 3729 et seq.

(West Supp. 1998). We must initially decide a jurisdictional
issue-- whether under the Eleventh Amendment private citizens

acting as qui tam plaintiffs can institute such suits against the

sovereign states. Because we hold that the Eleventh Amendment

bars this suit, we lack the constitutional authority to decide

the second-- and broader--issue presented in this appeal of

whether the False Claims Act creates a cause of action, at all

(whether by an individual or the United States government),

against an individual state when that state knowingly submits

false or fraudulent claims for payment to the United States. In

short, we simply hold that the Eleventh Amendment divests the

federal courts of jurisdiction over this qui tam action brought

against Texas Tech University and Texas Tech University Health

Sciences Center (“Texas defendants”).

I

A

Foulds possesses information that she believes will bring to

light a massive number of fraudulent claims submitted to the

United States. She obtained this information as a dermatology

resident at the Texas Tech Health Sciences Center (“TTHSC”).

Foulds worked at various clinics run by TTHSC. She examined

patients, made diagnoses, and prescribed treatment for patients.

Resident physicians performed these services, Foulds alleges,

without any supervision by the staff physicians. She says that

after residents had rendered these services without oversight,

2
staff physicians routinely signed patient charts and

Medicare/Medicaid billing forms certifying that the services were

personally performed by the staff physicians or by the staff

physicians’ employees under their personal direction. Foulds

alleges no simple clerical error. Indeed, she estimates that the

defendants have submitted almost one-half million false claims

over a period of ten years.

This alleged falsification of documents forms the basis for

Foulds’s action under the False Claims Act (“FCA” or “Act”).

That Act creates civil liability for, inter alia, “[a]ny person

who knowingly presents, or causes to be presented, to an officer

or employee of the United States Government . . . a false claim

for payment or approval.” 31 U.S.C. § 3729(a)(1) (emphasis

supplied).1 Foulds and the United States argue that the term

“person” includes a state. The Texas defendants disagree,

arguing that “person” does not include a sovereign state.

Aside from the question of whether the Act’s language

subjects states to potential liability, Foulds has other hurdles

to clear. An uninterested third party ordinarily cannot seek

relief for the United States’ injuries suffered at the hands of

another. See, e.g., Valley Forge Christian College v. Americans

1
The Act sets the penalty for violating this provision
between $5,000 and $10,000, plus three times the amount of
damages that the United States sustains. 31 U.S.C. § 3729(a).

3
United for Separation of Church and State, Inc., 454 U.S. 464,

474 (1982) (recognizing the principle that a plaintiff generally

must assert his own rights, and not the rights of third parties).

Many a good citizen, without hope of personal reward, might

choose to expose such corruption to allow the government to

recoup its losses. The FCA, however, provides a mechanism to

coax the less altruistic to come forward. Section 3730(b) of the

Act allows private persons to “bring a civil action for a

violation of § 3729 for the person and for the United States

Government.” 31 U.S.C. § 3729(b)(1). To be sure, the statute

provides for what can amount to massive rewards for a person who

undertakes this task.2

For hundreds of years, these proceedings have been labeled

“qui tam” actions.3 A qui tam plaintiff under the FCA must file

2
The private party’s reward for prosecuting the case
depends, in part, upon whether the government decides to
intervene. If the government chooses to intervene, the relator
“shall receive 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. § 3730(d)(1). If the government decides not to intervene,
the relator collects “not less than 25 percent and not more than
30 percent of the proceeds.” Id. § 3730(d)(2). The relator may
also collect reasonable expenses, attorneys’ fees and costs. Id.
§§ 3730(d)(1),(2). Foulds seeks to collect a Texas-sized reward
based on her allegations of over 400,000 false claims (which
could generate fines of between $5,000 and $10,000 each) and over
$20 million in overpayments (which § 3729(a) would treble).
3
This abbreviated Latin phrase is shorthand for “he who as
much for the king as for himself.” See generally Note, The
History and Development of Qui Tam, 1972 Wash. U. L.Q. 81, 83.

4
her complaint under seal and deliver copies of the complaint to

the United States. Id. § 3730(b)(2). The United States then

must decide within sixty days, unless granted an extension,

whether to intervene and prosecute the action itself or whether

to take on a passive role and allow the qui tam plaintiff (also

called a “relator”) to prosecute the action. Id. § 3730(b)(4).

In the instant case, the United States has not intervened in the

action leading to this appeal.

B

This appeal presents an additional claim. According to

Foulds, her decision to blow the whistle on the allegedly

fraudulent activities led to retaliatory conduct by the chairman

of the dermatology department.4 Foulds contends that she first

notified Texas Tech University’s general counsel of the false

claims in the fall of 1993. She alleges that soon thereafter she

received derogatory memoranda from the chairman of the

dermatology department and was subsequently placed on probation.

Section 3730(h) of the FCA provides remedies for those employees

harassed by their employers because of lawful acts performed in

furtherance of qui tam actions under the Act. The “employee may

bring an action in the appropriate district court of the United

States for the relief provided in this subsection.” 31 U.S.C. §

4
Foulds has not named this, or any, individual as a
defendant in this suit.

5
3730(h).

II

Foulds filed her complaint with the district court in August

of 1995. This complaint remained under seal until the district

court issued an order in September of 1996, denying the United

States’ request for an extension of time during which it could

determine whether to intervene.5 According to assertions made by

the United States at oral argument, the federal government simply

did not have the time necessary to determine whether this case

warranted its intervention. Shortly after the district court

issued the order denying the government’s request for an

extension, two of the defendants, Texas Tech University and Texas

Tech Health Sciences Center (“Texas defendants”),6 filed a motion

to dismiss the qui tam action pursuant to Rules 12(b)(1) and (6)

of the Federal Rules of Civil Procedure. The Texas defendants

based their motion to dismiss on four arguments: (1) the Eleventh

5
To date, the United States has intervened solely for
purposes of appeal. It would still be possible, however, for the
United States to intervene at the district court level if
proceedings were to continue. Section 3730(c)(3) states in part:
“When a person proceeds with the action, the court, without
limiting the status and rights of the person initiating the
action, may nevertheless permit the Government to intervene at a
later date upon a showing of good cause.”
6
In the original complaint, Foulds named five defendants:
Lubbock County, Lubbock County Hospital District, University
Medical Center, Texas Tech University, and Texas Tech Health
Sciences Center. Only the latter two defendants are before us on
this appeal.

6
Amendment precludes a private citizen from bringing a qui tam

suit against the sovereign states for alleged violations of the

FCA; (2) the Eleventh Amendment bars private citizens from naming

states as defendants to a claim seeking a retaliation remedy

under § 3730(h) of the FCA; (3) states are not “persons” for

purposes of the FCA; and (4) Foulds failed to plead fraud with

particularity.7

The district court denied the Texas defendants’ motion to

dismiss. Noting that a ruling on a 12(b)(1) motion to dismiss

for lack of subject matter jurisdiction must precede any

decisions on other Rule 12 motions, the court first addressed the

defendants’ Eleventh Amendment arguments.

The Texas defendants argued that the principles recognized

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

apply to this case. In Seminole Tribe, the Supreme Court

announced a two- step analysis for determining whether Congress

has legitimately denied the states the sovereign immunity

recognized under the Eleventh Amendment. First, a court must

determine whether “Congress has ‘unequivocally expresse[d] its

intent to abrogate the immunity.’” Id. at 55 (citation omitted).

Second, the court must decide “whether Congress has acted

7
In its order responding to the motion to dismiss, the
district court did not comment on the fourth argument. We
express no opinion as to it.

7
‘pursuant to a valid exercise of power.’” Id. (citation omitted).

With regard to the second inquiry, the Supreme Court held that

Congress could not abrogate Eleventh Amendment immunity simply by

enacting legislation under its general grant of Article I

legislative powers. Id. at 72-73. Controlling Supreme Court

precedent has recognized only one valid source of Congressional

power that would allow the abrogation of a state’s immunity from

suit by its citizens: § 5 of the Fourteenth Amendment. Id. at

59, 72-73. The Texas defendants have argued that, with respect

to the False Claims Act, Congress’ only source of legislative

power is Article I. Consequently, there has been no abrogation

of the Eleventh Amendment bar to this suit.

The district court quickly brushed aside the applicability

of Seminole Tribe. The court decided that it need not address

Seminole Tribe’s holding because the defense of sovereign

immunity from suit under the Eleventh Amendment was not presented

here inasmuch as the Eleventh Amendment did not apply to suits by

the United States against a state, which, it held, a qui tam

action is in fact. United States ex rel. Foulds v. Texas Tech

Univ., 980 F. Supp. 864, 870 (N.D. Tex. 1997). In reaching this

conclusion, the district court followed the path of the Fourth

Circuit in United States ex rel. Milam v. University of Texas

M.D. Anderson Cancer Ctr., 961 F.2d 46 (4th Cir. 1992) (“Milam”).

The Milam court decided first that the United States was the

8
“real party in interest” in qui tam suits under the FCA. It then

leapt to the conclusion that states have no sovereign immunity

defense against a private citizen relator--even if the United

States chose not to intervene--because states possess no immunity

from suits brought by the United States. Thus, the district

court found that Seminole Tribe had no bearing on this action

against the Texas defendants; those defendants simply had no

sovereign immunity defense in qui tam actions. Foulds, 980 F.

Supp. at 870.

The district court then decided that rejection of the

Eleventh Amendment challenge to Foulds’s § 3730(h) retaliation

claim easily followed. Although the United States would reap no

monetary award pursuant to a successful retaliation claim, the

district court found that

[i]f section 3730(h) is eviscerated, then the
Government is truly the one that will suffer the
greatest harm. This is because a “whistleblower” will
not be encouraged to come forward with information for
fear of being retaliated against.

Id. at 871. Thus, the district court reasoned that sovereign

immunity should not prevent the § 3730(h) action against the

Texas defendants.

Having disposed of the Eleventh Amendment issues, the

district court proceeded to address the remaining question: Does

the term “person,” under the FCA, encompass states? Although it

recognized that courts ordinarily do not understand the term

9
“person” to include the sovereign states, the court rejected this

general rule because

this would be an illogical step to make in light of
[the district] court’s finding that the Eleventh
Amendment does not bar Foulds’s suit against [the Texas
defendants].

Id. at 871. This somewhat questionable reasoning8 led the

district court to dismiss the Texas defendants’ 12(b)(6) motion.

After issuing its order denying the Texas defendants’

motions, the district court issued a stay pending this

interlocutory appeal. We have jurisdiction over this

interlocutory appeal pursuant to the collateral order doctrine.

See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,

Inc., 506 U.S. 139, 147 (1993) (holding that “States and state

entities . . . may take advantage of the collateral order

doctrine to appeal a district court order denying a claim of

Eleventh Amendment immunity”).

III

A

We begin and end with the jurisdictional question presented

by the Eleventh Amendment. Generally, our court would first

8
The reasoning is questionable because the district court
could have decided that private citizens can use the qui tam
device to bring states to court, while yet denying those citizens
relief because the particular statute at issue (the FCA) did not
subject states to liability. The statutory interpretation issue
need not be determined by resolution of the Eleventh Amendment
issue.

10
interpret the ambiguous statute before deciding any

constitutional issues. Indeed, courts’ interpretive results are

often influenced by their desire to avoid potential

constitutional problems. See, e.g., Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J.,

concurring); United States v. Reeves, 752 F.2d 995, 1001 (5th

Cir. 1985). Precisely because this has been the ordinary

approach (deciding the statutory question before the

constitutional question), we think it is jurisprudentially

important to discuss first the reasons for disregarding it in

this case.

The Eleventh Amendment’s admonition is jurisdictional in

nature:

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.

U.S. Const. amend. XI. While often noted for preserving state

sovereignty, the Amendment only accomplishes this end through

jurisdictional limitation. Puerto Rico Aqueduct, 506 U.S. at 144

(“[The Eleventh Amendment’s] withdrawal of jurisdiction

effectively confers an immunity from suit.”) Its negative

instruction on how to construe federal judicial power operates as

an additional boundary on that power, supplementing the

restraints on judicial power already implicitly provided in

11
Article III of the Constitution. See Atascadero State Hospital

v. Scanlon, 473 U.S. 234, 238 (1985) (quoting Pennhurst State

Sch. and Hosp. v. Halderman, 465 U.S. 89, 98 (1984)) (“[T]he

significance of [the Eleventh Amendment] ‘lies in its affirmation

that the fundamental principle of sovereign immunity limits the

grant of judicial authority in Art. III’ of the Constitution.”).9

9
In a recent case, the Supreme Court decided an Article III
question before reaching an Eleventh Amendment issue and stated
in a footnote that “[w]hile the Eleventh Amendment is
jurisdictional in the sense that it is a limitation on the
federal court’s judicial power, and therefore can be raised at
any stage of the proceedings, we have recognized that it is not
co-extensive with the limitations on judicial power in Article
III.” Calderon v. Ashmus, 118 S.Ct. 1694, 1697 n.2 (1998)
(citation omitted). Nonetheless, the historical context
surrounding the enactment of the Eleventh Amendment supports the
position that the Eleventh Amendment, if not part and parcel of
the Article III restrictions, is certainly intertwined with
Article III jurisprudence. The Supreme Court’s interpretation of
Article III powers in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419
(1793), prompted Congress’ “outraged reversal” of that decision
through enactment of the Eleventh Amendment. DAVID P. CURRIE, THE
CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 99 (1985). In
other words, Congress and the state legislatures enacted the
Eleventh Amendment as a corrective retort to a judicial
interpretation of Article III that was offensive. See also
Seminole Tribe, 517 U.S. at 72-73 (“The Eleventh Amendment
restricts the judicial power under Article III . . . .”);
Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)
(Eleventh Amendment’s sovereign immunity principle limits the
judicial authority in Article III).
The Supreme Court (in an opinion issued after Calderon) has
explicitly recognized that it has not yet decided whether
Eleventh Amendment immunity is a matter of subject matter
jurisdiction. Wisconsin Dept. of Corrections v. Schacht, 118
S.Ct. 2047, 2054 (1998); see also id. at 2055 (Kennedy, J.,
concurring) (noting that the Court has treated the Eleventh
Amendment as a limit on courts’ subject matter jurisdiction in
some respects, but as similar to personal jurisdiction
requirements in other respects). (We note, however, that courts

12
must also decide issues of personal jurisdiction before ruling on
the merits. Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211, 222-
23 (5th Cir.) (en banc), cert. granted, 119 S.Ct. 589 (1998).)
While the Supreme Court has left this question open, our court
has repeatedly referred to the Eleventh Amendment’s restriction
in terms of subject matter jurisdiction. See, e.g., Warnock v.
Pecos County, Texas, 88 F.3d 341, 343 (5th 1996) (“Because
[Eleventh Amendment] sovereign immunity deprives the court of
jurisdiction, the claims barred by sovereign immunity can be
dismissed only under Rule 12(b)(1) and not with prejudice.”);
John G. and Marie Stella Kennedy Mem’l Found. v. Mauro, 21 F.3d
667, 673-75 (5th Cir. 1994) (finding that the district court
erred in ruling on motion for partial summary judgment after the
Eleventh Amendment deprived the court of subject matter
jurisdiction); Stem v. Ahearn, 908 F.2d 1, 4 (5th Cir. 1990)
(when applicable, Eleventh Amendment will divest federal courts
of subject matter jurisdiction); McDonald v. Board of Miss. Levee
Comm’rs, 832 F.2d 901, 906 (5th Cir. 1987) (quoting Crane v.
Texas, 759 F.2d 412, 415 (5th Cir. 1985)) (“[E]leventh amendment
immunity is a jurisdictional issue that ‘cannot be ignored, for a
meritorious claim to that immunity deprives the court of subject
matter jurisdiction of the action.’”); Darlak v. Bobear, 814 F.2d
1055, 1064 (5th Cir. 1987) (dismissal of case on Eleventh
Amendment grounds recognized court’s lack of subject matter
jurisdiction and did not constitute a judgment on the merits);
Clark v. Tarrant County, Texas, 798 F.2d 736, 739 (5th Cir. 1986)
(court lacked subject matter jurisdiction over § 1983 claims
because of Eleventh Amendment). Until the Supreme Court,
Congress, or an en banc panel of this court reverses this
practice, we must continue it. Barber v. Johnson, 145 F.3d 234,
237 (5th Cir. 1998) (stating the Fifth Circuit rule). See also
Seaborn v. Florida, 143 F.3d 1405, 1407 (11th Cir. 1998)
(assertion of Eleventh Amendment immunity challenges a court’s
subject matter jurisdiction and must be resolved before a court
may address the merits of the underlying claim); Brown v. North
Carolina Div. of Motor Vehicles, No. 97-2784, 1999 WL 66089, at
*11 n.* (4th Cir. Feb. 12, 1999) (affirming dismissal for lack of
subject matter jurisdiction based on Eleventh Amendment immunity,
and then refusing to decide other statutory and constitutional
issues); Doe v. University of Illinois, 138 F.3d 653, 656 n.2
(7th Cir. 1998) (Eleventh Amendment immunity defense is a
question of courts’ subject matter jurisdiction); ANR Pipeline
Co. v. Lafaver, 150 F.3d 1178, 1186 n.8 (10th Cir. 1998) (noting
that courts should avoid reaching the merits of a constitutional
issue when the case may be decided on statutory grounds, but

13
It is the Eleventh Amendment’s restraint on “Judicial power” that

requires us to confront the Eleventh Amendment before employing

our power to interpret statutory text.

Although parties may (and do in this case) present their

arguments in the alternative, we cannot hand down a decision in

this fashion. To rule on a merits question before, or in

addition to, answering the omnipresent jurisdictional question

would contravene the well-established principle that the federal

courts may not issue advisory opinions. See Marathon Oil Co. v.

A.G. Ruhrgas, 145 F.3d 211, 222-23 (5th Cir.)(en banc)

(“Ruhrgas”) (adopting the reasoning in Rhulen Agency, Inc. v.

Alabama Ins. Guar. Ass’n, 896 F.2d 674 (2d Cir. 1990), which

stated that when a defendant moves for dismissal under Rule

12(b)(1), and on other grounds, the court should consider the

12(b)(1) motion first since other defenses become moot and need

recognizing that courts must first face the constitutional issue
of state sovereign immunity because it presents a controlling
jurisdictional question); Snoeck v. Brussa, 153 F.3d 984, 988
(9th Cir. 1998) (affirming district court’s dismissal on Eleventh
Amendment grounds and, therefore, finding it unnecessary to
address standing issue). It bears mention that a dismissive
footnote in Gordon v. Texas, 153 F.3d 190, 196 n.4 (5th Cir.
1998), arguably asserts that the Eleventh Amendment does not
restrict a court’s subject matter jurisdiction. To the extent
that the Gordon opinion makes this assertion, we cannot be bound
by it. The most recent Supreme Court decision (Schacht) has
expressly recognized that the Court has never decided this issue.
Schacht, 118 S.Ct. at 2054. Thus, our earlier circuit precedent
continues to bind us. Where two panel decisions conflict, the
prior decision constitutes the binding precedent.

14
not be determined if the court must dismiss the complaint for

lack of subject matter jurisdiction), cert. granted, 119 S.Ct.

589 (1998). In sum, we cannot hold that we possess no authority

to hear a case, and then proceed to decide the statutory issue

presented in the case. Steel Co. v. Citizens for a Better Env’t,

118 S.Ct. 1003, 1016 (1998); Ruhrgas, 145 F.3d at 216 (“[O]ur

jurisdiction must be considered at the outset of a case.”).

Nor can we assume jurisdiction to decide that the statute

creates no cause of action and then brush away the jurisdictional

question as unnecessary to address for the reason that, in either

event, the sum of the relief granted equals zero. The Supreme

Court has recently, and flatly, rejected any “doctrine of

hypothetical jurisdiction”10 required for such a holding. Steel

Co., 118 S.Ct. at 1012.11 Under this hypothetical approach,

10
The “doctrine of hypothetical jurisdiction” is a phrase
coined by the Ninth Circuit. United States v. Troescher, 99 F.3d
933, 934 n.1 (1996).
11
In Ruhrgas, the en banc opinion quotes the relevant
language in Steel Co. rejecting the doctrine of hypothetical
jurisdiction. Appended to this quotation is the parenthetical
“(majority opinion).” Ruhrgas, 145 F.3d at 216. It is not
entirely clear, however, that this portion of the Supreme Court’s
opinion attracted five votes. Justices Breyer, Stevens, Souter,
and Ginsburg expressed disagreement with an absolute rejection of
hypothetical jurisdiction. Steel Co., 118 S.Ct. at 1020-21
(Breyer, J., concurring); id. at 1031-32 (Stevens, J.,
concurring); id. at 1032 (Ginsburg, J., concurring). Although
Justice O’Connor said at the beginning of her concurring opinion
(which Justice Kennedy joined) that she joined the Court’s
opinion, she penned an equivocal passage concerning the doctrine
of hypothetical jurisdiction:

15
courts assumed, usually for the sake of simplicity, that they

possessed jurisdictional authority over the case, and then

decided whether the relevant statute created a cause of action.

See, e.g., United States v. Tonry, 605 F.2d 144, 148 n.12 (5th

Cir. 1979); Smith v. Avino, 91 F.3d 105, 108 (11th Cir. 1996);

Browning-Ferris Indus. v. Muszynski, 899 F.2d 151, 154-60 (2d

Cir. 1990). As the Supreme Court has decided, however, this

I . . . agree with the Court’s statement that federal
courts should be certain of their jurisdiction before
reaching the merits of a case. . . . I write separately
to note that, in my view, the Court’s opinion should
not be read as cataloging an exhaustive list of
circumstances under which federal courts may exercise
judgment in “reserv[ing] difficult questions of . . .
jurisdiction when the case alternatively could be
resolved on the merits in favor of the same party.”

Steel Co., 118 S.Ct. at 1020 (O’Connor, J., concurring) (quoting
Norton v. Mathews, 427 U.S. 524, 532 (1976)). But see Fidelity
Partners, Inc. v. First Trust Co. of New York, 142 F.3d 560, 565
(2d Cir. 1998) (Supreme Court has rejected doctrine of
hypothetical jurisdiction in Steel Co.); Seaborn v. Florida, 143
F.3d 1405, 1407 n. 2 (11th Cir. 1998) (Supreme court “squarely
rejected” the doctrine of hypothetical jurisdiction). Compare
Hardemon v. City of Boston, 144 F.3d 24, 26 (1st Cir. 1998) (“The
various opinions in the case, read as a whole, are not entirely
clear as to whether (or to what extent) Steel Co. undermines our
earlier practice [of assuming jurisdiction]. In all events,
having noted the red flag, we see no need in this case to test
the outer limits of the Court’s tolerance, and, thus, we turn to
the jurisdictional issue.”), with id. at 30 (Bownes, J.,
concurring) (“Reading the majority and concurring opinions in
Steel Co. together, there is a Supreme Court majority in support
of the general rule that ‘federal courts should be certain of
their jurisdiction before reaching the merits of a case.’”).
Although the final tally of the justices’ votes may not be clear,
our en anc opinion in Ruhrgas compels us to recognize Justice
Scalia’s Steel Co. opinion as authoritative.

16
approach is flawed, for “[o]n every writ of error or appeal, the

first and fundamental question is that of jurisdiction . . .”

Steel Co., 118 S.Ct. at 1012 (quoting Great Southern Fire Proof

Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). Furthermore,

[w]ithout jurisdiction the court cannot proceed at all
in any cause. 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 cause.

Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868); Steel

Co., 118 S.Ct. at 1016 (“For a court to pronounce upon the

meaning or the constitutionality of a state or federal law when

it has no jurisdiction to do so is, by very definition, for a

court to act ultra vires.”).12

Accordingly, if the Eleventh Amendment removes our

jurisdictional authority to hear Foulds’s case, we have no power

to determine whether the False Claims Act creates a cause of

12
No one has challenged Foulds’s standing in this case. We
must, however, consider possible objections to standing sua
sponte. Lang v. French, 154 F.3d 217, 222 (5th Cir. 1998). Our
court has explicitly found that qui tam plaintiffs have standing.
United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456,
460 (5th Cir. 1977). As noted in a district court opinion
concluding that relators lack standing, since our opinion in
Equifax, the Supreme Court has refined its standing
jurisprudence. United States ex rel. Riley v. St. Luke’s
Episcopal Hosp., 982 F. Supp. 1261 (S.D. Tex. 1997). Yet, with
regard to this issue, we consider persuasive a recent Supreme
Court decision dealing with a qui tam issue under the False
Claims Act. See Hughes Aircraft Co. v. United States ex rel.
Schumer, 117 S.Ct. 1871 (1997) (holding that portions of the 1986
amendments to the Act do not apply retroactively). The Hughes
Aircraft Court did not raise any standing objections.

17
action against states--i.e., whether states are “person[s]” under

the Act. See Blatchford v. Native Village of Noatak, 501 U.S.

775, 788 n.5 (1991) (“Because we find that § 1362 does not enable

tribes to overcome Alaska’s sovereign immunity, we express no

view on whether these respondents qualify as “tribes” within the

meaning of that statute.”). Even though our reading of “person”

might foreclose any possibility of a private citizen bringing a

FCA qui tam action against the state of Texas, this possible

result does not convert the statutory issue into a jurisdictional

one. A determination that the relevant statute creates no cause

of action under which the plaintiff may proceed says nothing

about a court’s subject-matter jurisdiction over the suit. Steel

Co., 118 S.Ct. at 1010 (“It is firmly established in our cases

that the absence of a valid (as opposed to arguable) cause of

action does not implicate subject-matter jurisdiction, i.e., the

courts’ statutory or constitutional power to adjudicate the

case.”).

B

1

We now attend to the threshold jurisdictional issue: whether

a private citizen may institute a suit--on behalf of the United

States--against a state in federal court. The facts of this case

necessarily limit our inquiry to the situation in which a private

citizen brings the qui tam action and the United States

18
government has not intervened.13 We review Eleventh Amendment

immunity determinations, like other questions of subject matter

jurisdiction, de novo as a question of law. Ussery v. Louisiana,

150 F.3d 431, 434 (5th Cir. 1998).

As a matter of helpful repetition, we again set out the text

of the Eleventh Amendment:

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.

U.S. Const. amend. XI (emphasis added). The Supreme Court has

interpreted this amendment to bar citizens from suing their own

states as well as other states. Hans v. Louisiana, 134 U.S. 1

(1890). We must therefore apply the seemingly plain proposition

13
Although we express no opinion as to whether the government’s
presence as intervenor would change the Eleventh Amendment
analysis, we do note that at least one Supreme Court case may be
relevant to that question. In an original action before the
Supreme Court involving a dispute between two states over water
rights of the Colorado River, the Court allowed Indian Tribes to
intervene after the United States had actively intervened in the
case. Arizona v. California, 460 U.S. 605, 613-14 (1983). In
concluding that the Eleventh Amendment did not bar this
intervention, the Supreme Court stated:

The Tribes do not seek to bring new claims or issues
against the states, but only ask leave to participate in
an adjudication of their vital water rights that was
commenced by the United States. Therefore, our judicial
power over the controversy is not enlarged by granting
leave to intervene, and the States’ sovereign immunity
protected by the Eleventh Amendment is not compromised.

Id. (emphasis added).

19
of the Eleventh Amendment to the arguments advanced by Foulds and

the United States that this case was not “commenced or

prosecuted” by a citizen, but instead by the United States

itself. In actuality, it is as plain as the sun that this suit

was not commenced by the United States and that the United States

has not intervened to prosecute the case. It is true however,

that Foulds, pursuant to statutory authority, has brought this

suit in the name of and on behalf of the United States to recover

damages for it for injuries it has suffered. Thus, although it

is clear--to track the language of the Eleventh Amendment--that

Foulds is a citizen who has commenced a suit against Texas, we

cannot conclude our inquiry so abruptly. We must explore the

more subtle question: Has Foulds, in her capacity as a private

citizen, commenced or prosecuted a suit against the state of

Texas?14

By first asking who has commenced or prosecuted the suit

against Texas, our starting point differs from that of the four

other circuit courts that have addressed this issue. Those

14
The Eleventh Amendment cloaks Texas Tech University and
Texas Tech University Health Sciences Center with sovereign
immunity as state institutions. See Wallace v. Texas Tech Univ.,
30 F.3d 1042, 1047 n.3 (5th Cir. 1996) (citing Henry v. Texas
Tech Univ., 466 F.Supp. 141, 144-46 (N.D. Tex. 1979) (Texas Tech
University and Texas Tech University School of Medicine both
enjoy sovereign immunity)). As the district court noted, the
Texas legislature has changed the name of Texas Tech University
School of Medicine to Texas Tech University Health Sciences
Center. Foulds, 980 F. Supp. at 870 n.4.

20
courts began their analyses by first determining that the United

States is the “real party in interest” in qui tam actions. Then,

they conclude that because the states enjoy no sovereign immunity

from the United States,15 the Eleventh Amendment does not apply.

United States ex rel. Rodgers v. Arkansas, 154 F.3d 865, 868 (8th

Cir. 1998); United States ex rel. Stevens v. Vermont Agency of

Natural Resources, 162 F.3d 195, 201-03 (2d Cir. 1998); United

States ex rel. Fine v. Chevron, U.S.A., Inc., 39 F.3d 957, 963

(9th Cir. 1994), vacated, 72 F.3d 740 (9th Cir. 1995); Milam, 961

F.2d at 50. But these decisions provide no reasons or authority

for equating a16 real party in interest with the party who

“commences or prosecutes” the suit. Deciding whether it is

Foulds or the United States that has commenced this suit

requires, we believe, a harder look than simply recognizing that

the United States is a real party in interest.

15
United States v. Texas, 143 U.S. 621, 646 (1892) (Texas
consented to suit by the United States when admitted into the
Union).
16
Our own circuit’s precedent describes the United States as
“a” real party in interest rather than “the” real party in
interest. Searcy v. Philips Electronics North America Corp., 117
F.3d 154, 156 (5th Cir. 1997) (case involving qui tam suit
against a private corporation). In contrast, the Second, Fourth,
Eighth and Ninth Circuits all use the definite article. But see
Stevens, 162 F.3d at 221 (Weinstein, J., dissenting) (“it is
apparent that the United States is not the only real party in
interest in this case”). As we shall see, our use of the
indefinite, rather than the definite, article has relevant
consequences in deciding which party “commences and prosecutes”
the suit within the meaning of the Eleventh Amendment.

21
 The question allows no easy answer. One reason for the

perplexity is that Congress has not, in this respect, specified

the contours of the relationship between the qui tam plaintiff

and the United States. At one end of the spectrum, the United

States could simply assign the cause of action to the qui tam

plaintiff, yielding complete control and ownership of the suit.

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

743, 748 (9th Cir. 1993) (“We conclude that Congress intended to

assign the government’s fraud claims to individual qui tam

plaintiffs in cases where the government itself chooses not to

pursue such claims.”); with Louisiana Dept. of Transp. and Dev.

v. PNL Asset Management Co. (In re Estate of Fernandez), 123 F.3d

241, 245-46 (5th Cir.) (private party cannot escape sovereign

immunity defense when United States agency sold that party the

judgment forming the basis of a bankruptcy adversarial

proceeding), modified, 130 F.3d 1138 (5th Cir. 1997)

(“Fernandez”). At the other end of the spectrum, the United

States could formally deputize each individual qui tam plaintiff

so that the relator remains under the full control of, and acts

first and foremost in the interests of, the United States. Cf.

Milam, 961 F.2d at 49 (“Congress has let loose a posse of ad hoc

deputies . . .”).

Contrary to language in the cases just cited, neither of

those two concepts--at the respective ends of our spectrum--

22
accurately describes the relationship:17 The government retains

some control over the qui tam suit commenced by the plaintiff,

see, e.g., 31 U.S.C. § 3730(c)(3) (United States may intervene

upon showing of good cause), but does not exercise authoritative

control over the case, see, e.g., id. § 3730(c)(1) (relator has

the right to remain a party to the suit even if the government

intervenes). The government retains some possessory rights to

the proceeds of the suit, see id. § 3730(d)(2) (fixing the

relator’s maximum share of proceeds at thirty percent) , but

cannot claim rights to all of the proceeds, see id. § 3730(d)

(establishing relator’s minimum percentage share of the

proceeds). The FCA does expressly assign some authority to

institute suits in the name of the government, see id. § 3730(b)

(“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.”), but the

government does not expect that the relator will act first and

foremost with the government’s interests in mind, see e.g.,

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

Corp., 151 F.3d 1139 (9th Cir. 1998) (discussing government’s

effort to end industry war by intervening in over twenty FCA

17
See generally Valerie R. Park, Note, The False Claims Act,
Qui Tam Relators, and the Government: Which is the Real Party to
the Action?, 43 Stan. L. Rev. 1061 (1991).

23
suits between competing citrus companies).18 However we may

describe and weigh the respective roles of the government and the

qui tam plaintiff under the False Claims Act, we still must

decide whether it can be said that this suit was commenced or

18
The Second Circuit has indicated that the interests of a
qui tam plaintiff are akin to the interests of an attorney
working for a contingent fee. Stevens, 162 F.3d at 202. We
think this analogy, while conceptually clear, is flawed because
of important distinctions between the roles of a qui tam
plaintiff and a contingent fee lawyer. For example, an attorney
owes important fiduciary duties to his client that the qui tam
plaintiff does not owe to the United States. No legal duty
prevents the qui tam plaintiff from furthering his own interests
to the detriment of the United States’ interests. Cf. United
States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 718
(9th Cir. 1994) (qui tam case in which “[t]he government thought
that the parties might have specifically structured the
settlement so as to reduce the amount the government realized” by
placing the bulk of the settlement amount into a wrongful
termination claim instead of the FCA claim); United States ex
rel. Mathews v. Bank of Farmington, No. 98-2040, 1999 WL 25680,
at *4 (7th Cir. Jan. 20, 1999) (noting that the FCA would not
prevent some types of “troubling” and opportunistic claims);
Searcy v. Philips Electronics North America Corp., 117 F.3d 154,
160 (5th Cir. 1997) (noting that relators can manipulate
settlements of qui tam litigation in ways that “unfairly enrich
them and reduce benefits to the government,” but then holding
that the Attorney General always retains the right to object to
these settlements); Stevens, 162 F.3d at 225-29 (Weinstein, J.,
dissenting) (arguing, on an abstract level, that qui tam
plaintiffs bringing suits against states can undermine federal
interests by thwarting the healthy process whereby federal
representatives, federal administrators, and state administrators
work together to coordinate the administration of programs
involving the federal and state governments). Furthermore, the
Supreme Court has found that a different analogy applies: Qui
tam methods of prosecution “compare with the ordinary methods as
the enterprising privateer does to the slow-going public vessel.”
Hughes Aircraft, 117 S.Ct. at 1877 (quoting United States ex rel.
Marcus v. Hess, 317 U.S. 537, 541, n.5 (1943) (quoting United
States v. Griswold, 24 F. 361, 366 (D. Or. 1885)).

24
prosecuted by the United States for Eleventh Amendment purposes.

2

Preliminarily, we note that even though the United States

may be a relevant “party” in this suit for some purposes of the

litigation, the Federal Government certainly is not the acting

party-of-record in this suit. Our court’s precedent commands

this view. In Searcy v. Philips Electronics North America Corp.,

117 F.3d 154, 156 (5th Cir. 1997), we faced the question whether

the United States could appeal a district court’s settlement

approval when the government had not yet intervened in the qui

tam action. We found that the United States--although a real

party in interest--was not a party for purposes of appeal.19 Id.

at 156. We based this conclusion on our view that the FCA’s

structure distinguishes between cases in which the
United States is an active participant and cases in
which the United States is a passive beneficiary of the
relator’s efforts. [Thus,] when the government chooses
to remain passive, as it [had in Searcy], we [saw] no
reason to treat it as a party with standing to
challenge the district court’s action as of right.

Id. at 156 (emphasis added); see also Avco Corp. v. United States

Dept. of Justice, 884 F.2d 621, 623-24 (D.C. Cir. 1989)

(interpreting the word “commences,” as used in the FCA, so that

the relator’s act of commencing an action does not equate to the

19
We went on to conclude, however, that the United States
could appeal the district court’s order as a proper non-party
appellant. Searcy, 117 F.3d at 157-58.

25
Attorney General commencing an action). Just as in Searcy, the

United States has chosen to remain inactive in the prosecution of

this case. Where the United States has opted for this passive

role, it is difficult to treat it as the party that has

“commenced or prosecuted” the suit. Cf. 31 U.S.C.A. §

3730(b)(4)(B) (giving the relator “the right to conduct the

action” when the government declines to assume control); Searcy,

117 F.3d at 160 (“A relator has ‘conducted’ an action if he

devises strategy, executes discovery, and argues the case in

court . . .”). To say the least, a “passive party” is certainly

a contradictory description for a party who “commences” or

“prosecutes” the suit.20

20
Our early legislators adopted the qui tam concept from the
English system. See Note, The History and Development of Qui
Tam, 1972 Wash. U. L.Q. 81. Thus, it is significant that in his
description of qui tam actions, William Blackstone indicated that
either the king or the relator could “commence” a quit tam
action:

Sometimes one part [of the proceeds from suit] 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 quam pro
se imposo sequitur.” If the king therefore himself
commences this suit, he shall have the whole
forfeiture.

3 William Blackstone, Commentaries *160. Blackstone penned this
passage less than thirty years before ratification of the
Eleventh Amendment.

26
 3

The only argument raised to challenge the facial assumption

that Foulds actually “commenced and prosecuted” this action as a

private citizen is that the FCA establishes Foulds as the deputy

of the United States.21 The Supreme Court has made clear,

however, that Congress cannot delegate to private citizens the

United States’ sovereign exemption from Eleventh Amendment

restrictions.

In Blatchford, the Court held that the Eleventh Amendment

bars federal court suits by Indian tribes against a state.

21
A critical issue related to this “deputization” argument,
however, is whether the United States Congress can assign the
power of the United States as a sovereign to sue another
sovereign. Aside from the Eleventh Amendment issue, we note our
concern as to whether Congress can, consistent with the
Constitution, deputize private parties to act on behalf of the
Executive Branch. See United States ex rel. Stevens v. Vermont
Agency of Natural Resources, 162 F.3d 195, 220 (2d Cir. 1998)
(Weinstein, J., dissenting) (discussing why “the FCA’s qui tam
procedures may violate the Appointments Clause of Article II of
the Constitution, and may interfere with the President’s
explicitly stated constitutional duty to take care that the laws
be faithfully executed”). Because we ultimately find that the
federal courts have no jurisdiction over this suit, we do not
(and, indeed, cannot) express any opinion on this non-
jurisdictional issue. We do, however, note that the Department
of Justice has indicated agreement with a memorandum published by
the Office of Legal Counsel. See Memorandum for the General
Counsels of the Federal Government, The Constitutional Separation
of Powers Between the President and Congress, 1996 WL 876050
(O.L.C.) (Preliminary Print) (May 7, 1996). The Office of Legal
Counsel states agreement with the view that “because qui tam
plaintiffs are not officers of the United States, the FCA does
not violate the Appointments Clause.” Id. at *15 n. 66 (quoting
United States ex rel. Burch v. Piqua Engineering, Inc., 803 F.
Supp. 115, 120 (S.D. Ohio 1992).

27
Blatchford, 501 U.S. at 782. The tribes argued that the United

States had delegated to the tribes its authority to bypass the

Eleventh Amendment and to thus sue the states in federal courts.

The tribes first pointed out that the Supreme Court had

previously recognized the authority of the United States to bring

claims against states to enforce rights of Indian tribes. Id. at

783. Next, the tribes argued that a jurisdictional statute, 28

U.S.C. § 1362,22 delegated to Indian tribes the United States’

power to press their claims notwithstanding the states’ Eleventh

Amendment sovereign immunity. Blatchford, 501 U.S. at 783.23

Because the Eleventh Amendment does not bar the United States

from suing the states in federal court, the tribes argued, it

also does not bar delegates of the United States (pursuant to §

1362) from commencing an action in the federal courts. The

Supreme Court rejected this argument:

22
Section 1362 states:

The district courts shall have original jurisdiction of
all civil actions, brought by any Indian tribe or band
with a governing body duly recognized by the Secretary
of the Interior, wherein the matter in controversy
arises under the Constitution, laws, or treaties of the
United States.

28 U.S.C. § 1362 (1994).
23
The argument did not assert that Congress abrogated the
states’ sovereign immunity in § 1362. Blatchford, 501 U.S. at
785. Rather, the tribes argued that the statute, like the FCA
qui tam statute, simply allowed Indian tribes to litigate suits
that the United States could have brought. Id.

28
 We doubt . . . that the sovereign exemption can be
delegated . . . The consent “inherent in the
convention,” to suit by the United States--at the
instance and under the control of responsible federal
officers--is not consent to suit by anyone whom the
United States might select . . .

Id. at 785. See also The Federalist No. 81, at 455 (Alexander

Hamilton) (Isaac Kramnick ed., 1987) (“It is inherent in the

nature of sovereignty not to be amenable to the suit of an

individual without its consent. . . . Unless, therefore, there is

a surrender of this immunity in the plan of the convention, it

will remain with the States . . . .”); Stevens, 162 F.3d at 224

(Weinstein, J., dissenting) (stating that the federal

government’s power to sue a state in federal court is

nontransferable); Rodgers, 154 F.3d at 869 (Panner, J.,

dissenting) (same). To be sure, our circuit has been explicit

that “there must be a clear expression of purpose to abrogate the

Eleventh Amendment in any extension of agency status to a private

party for the purpose of jurisdiction.” Fernandez, 130 F.3d at

1139. The FCA contains no such clear expression.

As the Supreme Court has suggested in Blatchford, the

principle of federalism embodied in both the Constitution and the

Eleventh Amendment reflects an understanding between two

sovereign authorities--the Federal Government and the respective

states-- that state sovereignty is surrendered only to another

sovereign, the United States, which, of course, acts through

29
“responsible federal officers.” Qui tam plaintiffs cannot

qualify as surrogates of “responsible federal officers” who have

the right to represent the sovereign to sue the respective

states. Indeed, the Supreme Court has recognized this fact. In

a recent case, it stated that “[a]s 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, 117 S.Ct. 1871, 1877 (1997) (unanimous opinion)

(emphasis added). Importantly, the Supreme Court specifically

noted “[t]hat [just because] a quit tam suit is brought by a

private party ‘on behalf of the United States,’ does not alter

the fact that a relator’s interests and the Government’s do not

necessarily coincide.” Id. at 1877 n.5. This realistic

portrayal of qui tam plaintiffs comports with the rationale

behind the FCA provisions as articulated by Senator Howard, the

sponsor of the original bill preceding the FCA:

I have based the enforcement provisions upon the old-
fashioned idea of holding out a temptation, and
“setting a rogue to catch a rogue,” which is the safest
and most expeditious way I have ever discovered of
bringing rogues to justice.

Cong. Globe, 37th Cong., 3d Sess. 955-56 (1863). Furthermore,

Sir Edward Coke’s class description of qui tam plaintiffs hardly

suggests a historical understanding of relators as responsible

30
representatives of the sovereign. He described the common

informers who institute penal actions for the government as

“viperous vermin” that prevent “[t]he King [from] commit[ting]

the sword of his justice or the oil of his mercy.” Gerald Hurst,

The Common Informer, 147 Contemp. Rev. 189-90 (1935). In short,

these descriptions of the historical qui tam plaintiff undermine

the concept that she is deputized to stand in for the

“responsible federal officers” to whom the states have

surrendered their sovereign rights.

Furthermore, rogue or not, the qui tam plaintiff is surely

no mere opportunistic bystander in the litigation, irrespective

of whose name the litigation may bear. With the merely

chimerical presence of the United States in this case, the

relator’s significant control over the litigation process plainly

impinges on state sovereignty. It is Foulds--not the United

States as sovereign--who controls all strategic litigation

decisions in the case such as how, when and in what manner to

make demands on a state, whether to sue a state, how far to push

the state toward a jury trial in extended litigation, whether to

settle with a state and on what terms, etc.; and it is Foulds who

maintains sole responsibility for financing the litigation and

for its costs. See 31 U.S.C. § 3730(f) (“The Government is not

liable for expenses which a person incurs in bringing an action

under this section.”). The fact that the government has not a

31
penny staked in this case plays an important role in determining

which party has commenced and prosecuted the suit for Eleventh

Amendment purposes. See New Hampshire v. Louisiana, 108 U.S. 76,

89 (1883) (where private citizens funded the litigation, Eleventh

Amendment barred suit brought in the name of a state, on behalf

of those private citizens, against another State). Unless the

United States commits its own resources--both personnel and money

that are under its authority and control--private citizens should

not be able to sidestep the Eleventh Amendment and hail the

sovereign states into federal court.24

4

In sum, we hold that when the United States has not actively

intervened in the action, the Eleventh Amendment bars qui tam

plaintiffs from instituting suits against the sovereign states in

federal court. The United States’ decision to maintain a passive

role compels us to conclude that the private citizen, not the

24
Of course, citizens may, generally, pursue prospective
injunctive relief against state officials. See Edelman v.
Jordan, 415 U.S. 651, 664 (1974) (recognizing the Eleventh
Amendment distinction between retrospective and prospective
relief). Foulds seeks only retrospective relief under the FCA.
In her original complaint, however, Foulds also requested an
order directing the defendants to “cease and desist from
violating 31 U.S.C. § 3729.” The FCA does not provide for this
prospective relief. Since the qui tam plaintiff’s standing is
supported only by the FCA’s qui tam provision, courts must deny
any such requests. Cf. Equifax, 557 F.2d at 459-60 (qui tam
plaintiff has no standing to seek declaratory judgment against
defendant).

32
United States, has “commenced or prosecuted” the suit.

Furthermore, the United States cannot delegate to non-designated,

private individuals its sovereign ability to evade the

prohibitions of the Eleventh Amendment. Only “responsible

federal officers,” or those who act at their instance and under

their control, may exercise the authority of the United States as

sovereign. Foulds does not qualify.

C

Having decided that a private citizen has commenced and

prosecuted this action against a sovereign state within the

meaning of the Eleventh Amendment’s proscription, our remaining

task is to apply the dictates of Seminole Tribe:

In order to determine whether Congress has abrogated
the States’ sovereign immunity, we ask two questions:
first, whether Congress has “unequivocally expresse[d]
its intent to abrogate the immunity,” and second,
whether Congress has acted “pursuant to a valid
exercise of power.”

Seminole Tribe, 517 U.S. at 55 (citations omitted).

In Scott v. University of Mississippi, 148 F.3d 493 (5th

Cir. 1998), we stated the requirements for finding Congressional

intent to abrogate the States’ sovereign immunity:

Congress’s intent to abrogate state sovereign immunity
“must be obvious from ‘a clear legislative statement.’”
Congress may abrogate state sovereign immunity “only by
making its intention unmistakably clear in the language
of the statute.” A general authorization for suit in
federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh
Amendment.” Instead, both the text and structure of

33
 the statute must “make[] it clear that the State is the
[intended] defendant in the suit.” Congress is not
required, however, to “explicitly reference to state
sovereign immunity or the Eleventh Amendment.”

Id., 148 F.3d at 499 (citations omitted).

Foulds has not argued that the FCA “unequivocally

expresse[s]” a congressional intent to abrogate the states’

sovereign immunity. Neither have we found any such clear intent,

as no relevant provision of the Act explicitly mentions states as

defendants. Cf. Seminole Tribe, 517 U.S. at 57 (“[W]e think that

the numerous references to the ‘State’ in the text of §

2710(d)(7)(B) make it indubitable that Congress intended through

the Act to abrogate the States’ sovereign immunity from suit.”).

We need not proceed any further than this. The Eleventh

Amendment bars Foulds’s § 3729 claim against the Texas

defendants.

D

We must next consider the Eleventh Amendment implications

for Foulds’s § 3730(h) anti-retaliation claim.25 We conclude

25
Section 3730(h) states:

Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment by his or her employer because of lawful
acts done by the employee on behalf of the employee or
others in furtherance of an action under this section,
including investigation for, initiation of, testimony for,
or assistance in an action filed or to be filed under this
section, shall be entitled to all relief necessary to make

34
that she has “commenced or prosecuted”, within the meaning of the

Eleventh Amendment, a suit against the Texas defendants for this

alleged violation of § 3730(h). Consequently, this claim must be

dismissed as well.

Foulds’s argument that the United States is also a real

party in interest in a § 3730(h) claim is, it seems to us, far

more of a stretch than the claim we have just dismissed. The

only support she offers for this argument is that the United

States has an interest in protecting those who prosecute actions

on the United States’ behalf. (The United States, which has

argued alongside Foulds for purposes of this appeal, leaves her

on her own when she makes this argument.) Even if we assume that

the claim was not dependent upon her ability to prosecute this

case, there are significant independent reasons that lead to our

rejection of this claim. The qui tam plaintiff keeps all of the

proceeds from any successful § 3730(h) claim; indeed, only a qui

tam plaintiff possesses the right to bring such a claim.

the employee whole. Such relief shall include reinstatement
with the same seniority status such employee would have had
but for the discrimination, 2 times the amount of back pay,
interest on the back pay, and compensation for any special
damages sustained as a result of the discrimination,
including litigation costs and reasonable attorneys' fees.
An employee may bring an action in the appropriate district
court of the United States for the relief provided in this
subsection.

31 U.S.C.A. § 3730(h) (West Supp. 1998).

35
Therefore, even if we accepted a “real party in interest”

analysis for determining whether the Eleventh Amendment applies

in this case, Foulds’s § 3730(h) claim nevertheless would be

barred. See Bankston v. Burch, 27 F.3d 164, 167 (5th Cir. 1994)

(party possessing the right sought to be enforced is the real

party in interest). Any collateral interest the United States

might have in protecting qui tam plaintiffs simply cannot trump

the Eleventh Amendment.26

IV

For all of the foregoing reasons, we REVERSE the district

court’s order denying the Rule 12(b)(1) motion to dismiss for

lack of subject matter jurisdiction over the suit, and we REMAND

for an entry of a judgment dismissing the complaint as to Texas

Tech University and Texas Tech University Health Sciences Center.

REVERSED and REMANDED for Entry of
Judgment Dismissing Appellants.

Judge Benavides concurs in result.

26
With respect to § 3730(h), Foulds has only requested
retrospective, monetary relief.

36