O'Connell Ex Rel. United States v. Regents of the University of California

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL J. O’CONNELL, Relator; ex No. 15-17528
rel. United States of America,
D.C. No. 3:14-cv-02880-HSG
Plaintiff-Appellant,

v. MEMORANDUM*

REGENTS OF THE UNIVERSITY OF
CALIFORNIA,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted November 16, 2016**

Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.

Michael J. O’Connell appeals pro se from the district court’s judgment

dismissing his qui tam action alleging violations of the False Claims Act. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Omar v. Sea-Land

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987). We affirm.

The district court properly dismissed O’Connell’s action because the

Regents of the University of California are a state entity and the False Claims Act

does not provide a private right of action against state entities. See Donald v. Univ.

of Cal. Bd. of Regents, 329 F.3d 1040, 1043-44 (9th Cir. 2003) (“Because a state

entity is not identified as a ‘person’ for purposes of § 3729, the relators can claim

no statutory basis under § 3730(b)(1) to bring suit against the Regents.”); see also

Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 787-88

(2000) (“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 False Claims Act does not subject a State (or state

agency) to liability in such actions.”).

Contrary to O’Connell’s contention, the district court did not err in

dismissing O’Connell’s action prior to the issuance of a summons. See Franklin v.

Or., State Welfare Div., 662 F.2d 1337, 1343 (9th Cir. 1981).

AFFIRMED.

2 15-17528