The United States is the real party in interest in any False Claims Act suit, even when it permits a qui tam relator to pursue the action on its behalf.
A relator filed a qui tam action under the False Claims Act on behalf of the United States, alleging that a state university used false data to obtain federal grants. The university moved to dismiss the suit, asserting Eleventh Amendment immunity. The court must determine whether the United States is the real party in interest in a qui tam action brought by a relator. Because the False Claims Act requires relators to sue in the name of the government, the government retains significant control over the litigation and receives the majority of any recovery. Therefore, the United States is the real party in interest, and its immunity from suits brought by states does not extend to the relator's action.
At page 49 Determining government's standing in qui tam actions35 citing casesconsidering qui tam standing based on the government’s assignment of its own “personal stake in the damages sought
- Bagley v. United States, 963 F. Supp. 2d 982 (C.D. Cal. 2013).published (The relator has no personal stake in the damages sought — all of which, by definition, were suffered by the government)
- United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000).published See Milam, 961 F.2d at 50 (“[T]he United States is the real-party-in-interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf.”); United States ex rel.
- United States v. SCS Bus. & Technical Inst., Inc., 173 F.3d 870 (D.C. Cir. 1999).published (Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government.)
- United States ex rel. Long v. SCS Bus. & Technical Inst., Inc., 173 F.3d 870 (D.C. Cir. 1999).published (Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government.)
- Carol Rae Cooper Foulds v. Texas Tech Univ., 171 F.3d 279 (5th Cir. 1999).published(Congress has let loose a posse of ad hoc deputies ...)
- United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 20 F. Supp. 2d 1017 (S.D. Tex. 1998).published([T]he government, and not the relator, must have suffered the injury-in-fact required for Article III)
- United States ex rel. Hall v. Tribal Dev. Corp., 49 F.3d 1208 (7th Cir. 1994).published (the government, and not the relator, must have suffered the 'injury in fact' required for Article III)
- United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148 (2d Cir. 1993).published (The government, and not the relator, must have suffered the ‘injury in fact’ required for Article III standing.)
- Fuqua, No. 4:24-cv-00088 (W.D. Ky. Mar. 26, 2026).(considering qui tam standing based on the government’s assignment of its own “personal stake in the damages sought)
- Jenkins, No. 4:24-cv-00090 (W.D. Ky. Mar. 26, 2026).(considering qui tam standing based on the government’s assignment of its own “personal stake in the damages sought)
Show 20 more citing cases
- Cayce, No. 4:24-cv-00086 (W.D. Ky. Mar. 26, 2026).(considering qui tam standing based on the government’s assignment of its own “personal stake in the damages sought)
- Cayce, No. 4:24-cv-00087 (W.D. Ky. Mar. 26, 2026).(considering qui tam standing based on the government’s assignment of its own “personal stake in the damages sought)
- Gunkel, No. 4:24-cv-00092 (W.D. Ky. Mar. 26, 2026).(considering qui tam standing based on the government’s assignment of its own “personal stake in the damages sought)
- Chumba v. Kiehl, No. 2:20-cv-02513 (D. Kan. Mar. 31, 2023).Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992)).
- B.Y.R.D. v. Acadia Healthcare Co., No. 3:18-cv-00312 (M.D. La. Mar. 18, 2021).Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992)).
- United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330 (4th Cir. 2017).published Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir. 1992).
- United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180 (5th Cir. 2009).publishedAnderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.1992). 5 .
- United States ex rel. Lowman v. Hilton Head Health Sys., L.P., 487 F. Supp. 2d 682 (D.S.C. 2007).published Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.1992)).
- Lyons v. Ryan, 756 N.E.2d 396 (Ill. App. Ct. 1st Dist. 2001).published Anderson Cancer Center , 961 F.2d 46, 49 (4th Cir. 1992).
- Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001).published Anderson Cancer Ctr., 961 F.2d 46, 48-49 (4th Cir. 1992) (emphasizing the "extensive power the government has to control [qui tam] litigation" and underscoring that the United States is the "real plaintiff" in a qui tam action filed under…
- Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 1999).published Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992). 43 478 U.S. 833 (1986). 44 433 U.S. 425 (1977). 45 487 U.S. 654 (1988). 46 Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 856 (1986). 47 Nixon v. Administrator of Gen.
- United States ex rel. Butler v. Magellan Health Servs., Inc., 74 F. Supp. 2d 1201 (M.D. Fla. 1999).publishedAnderson Cancer Center, 961 F.2d 46, 49 (1992).
- United States ex rel. Rodgers v. Arkansas, 154 F.3d 865 (8th Cir. 1998).published Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.1992). 15 Other circuits have held similarly.
- United States ex rel. Amin v. George Washington Univ., 26 F. Supp. 2d 162 (D.D.C. 1998).publishedBerge v. Board of Trustees, 104 F.3d 1453, 1457-58 (4th Cir.1997); Hall, 49 F.3d at 1212-14 ; Kelly, 9 F.3d at 748 ; Kreindler, 985 F.2d at 1154 ; Milam, 961 F.2d at 49).
- United States ex rel. James Zissler v. Regents of the Univ. of Minnesota, 154 F.3d 870 (8th Cir. 1998).published Milam, 961 F.2d at 49, whose involvement in a representational capacity does not raise Eleventh Amendment concerns.
- United States v. Bald Eagle Realty, 1 F. Supp. 2d 1311 (D. Utah 1998).publishedMilam v. University of Texas, 961 F.2d 46, 49 (4th Cir.1992).
- United States ex rel. Roby v. Boeing Co., 995 F. Supp. 790 (S.D. Ohio 1998).publishedBerge, 104 F.3d at 1457; Hall, 49 F.3d at 1212-1214 ; Kelly, 9 F.3d at 748 ; Kreindler, 985 F.2d at 1154 ; Milam, 961 F.2d at 49; Stillwell, 714 F.Supp. at 1097-1099 ; Givler, 775 F.Supp. at 181 .
- Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765 (9th Cir. 1997).published(The relator has no personal stake in the damages sought-all of which, by definition, were suffered by the government.)
- United States v. Northrop Corp., 91 F.3d 1211 (9th Cir. 1996).published
- Nos. 96-55358, 96-55892, 125 F.3d 765 (9th Cir. 1997).published
At page 50 Determining the real party in interest in false claims act suits17 citing casesWe hold that the United States is the real party in interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf.
- United States v. Abbott, No. 5:23-cv-01233 (W.D. Tex. Oct. 24, 2023).([T]he United States is the real party in interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf.)
- United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000).published ([T]he United States is the real-party-in-interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf.)
- United States ex rel. Long v. SCS Bus. & Technical Inst., Inc., 173 F.3d 870 (D.C. Cir. 1999).published See Stevens, 162 F.3d at 202 ; Milam, 961 F.2d at 49 (“Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government.”); Siegel, supra, 73 Tex. L. Rev. at 556-57; Evan Caminker, The Constitutional…
- Tolliver Grp., Inc. v. United States, No. 17-1763 (Fed. Cl. Jan. 22, 2020).published(We hold that the United States is the real party in interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf.)
- United States ex rel. Ian Dixon v. Sentara Health Plans, No. 3:20-cv-00062 (W.D. Va. July 31, 2026).(concluding, in determining whether the state defendants had Eleventh Amendment immunity, that “the United States is the real party in interest in any [FCA] suit” even where it has declined to intervene)
- PennEast Pipeline Co LLC v., No. 19-1191 (3d Cir. Sept. 10, 2019).published (concluding that “the United States is the real party in interest” in qui tam suits and therefore such suits are not barred by the States’ Eleventh Amendment immunity)
- United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242 (10th Cir. 2017).publishedAnderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir. 1992). 2 .
- United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330 (4th Cir. 2017).published Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir. 1992).
- United States ex rel. Pogue v. Diabetes Treatment Centers of Am., Inc., 474 F. Supp. 2d 75 (D.D.C. 2007).publishedAnderson Cancer Center, 961 F.2d 46, 50 (4th Cir.1992), and the fact that the United States has asserted throughout this case that it is a real parly in interest.
- United States ex rel. Walsh v. Eastman Kodak Co., 98 F. Supp. 2d 141 (D. Mass. 2000).publishedAnderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir.1992).
Show 6 more citing cases
- United States ex rel. Lindsey v. Trend Cmty. Mental Health Servs., 88 F. Supp. 2d 475 (W.D.N.C. 1999).published Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir.1992)).
- United States ex rel. Stevens v. Vermont Agency of Nat. Resources, 162 F.3d 195 (2d Cir. 1998).published (United States is the real party in interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf’)
- United States v. Schimmels (In re Schimmels), 127 F.3d 875 (9th Cir. 1997).published(the “United States is the real party in interest in any False Claims Act suit, even when it permits a qui tam relator to pursue the action on its behalf’)
- United States ex rel. Jane Doe 1 v. X, Inc., 246 B.R. 817 (E.D. Va. 2000).published
- United States ex rel. Milam v. Regents of the Univ. of California, 912 F. Supp. 868 (D. Md. 1995).published
- United States ex rel. Berge v. Bd. of Trs. of the Univ. of Alabama, 104 F.3d 1453 (4th Cir. 1997).published
At page 48 Government interest and standing in qui tam suits13 citing casesemphasizing the "extensive power the government has to control [qui tam] litigation" and underscoring that the United States is the "real plaintiff" in a qui tam action filed under the FCA, that it "is entitled to the lion's share of any amount recovered," and that it may intervene upon a showing o…
- PennEast Pipeline Co LLC v., No. 19-1191 (3d Cir. Sept. 10, 2019).published Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir. 1992) (concluding that “the United States is the real party in interest” in qui tam suits and therefore such suits are not barred by the States’ Eleventh Amendment immunity).
- United States ex rel. Landis v. Tailwind Sports Corp., 98 F. Supp. 3d 8 (D.D.C. 2015).publishedAnderson Cancer Center, 961 F.2d 46, 48-49 (4th Cir.1992)), as the “harms redressed by the FCA belong to the government” regardless of who guides the litigation, Health Possibilities, 207 F.3d at 340 (citing United States ex rel.
- United States ex rel. Lowman v. Hilton Head Health Sys., L.P., 487 F. Supp. 2d 682 (D.S.C. 2007).published Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.1992)).
- United States v. R&F Props. of Lake Cnty., Inc., 433 F.3d 1349 (11th Cir. 2005).publishedAnderson Cancer Center, 961 F.2d 46, 48-49 (4th Cir.1992)).
- United States ex rel. Taylor v. Gabelli, 233 F.R.D. 174 (D.C. Cir. 2005).publishedAnderson Cancer Ctr., 961 F.2d 46, 48 (4th Cir.1992).
- United States ex rel. Dimartino v. Intelligent Decisions, Inc., 308 F. Supp. 2d 1318 (M.D. Fla. 2004).publishedAnderson Cancer Center, 961 F.2d 46, 48-49 (4th Cir.1992).
- Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001).published (emphasizing the "extensive power the government has to control [qui tam] litigation" and underscoring that the United States is the "real plaintiff" in a qui tam action filed under the FCA, that it "is entitled to the l…)
- United States ex rel. Graber v. City of New York, 8 F. Supp. 2d 343 (S.D.N.Y. 1998).publishedAnderson Cancer Ctr., 961 F.2d 46, 48 (4th Cir.1992).
- Searcy v. Philips Elec. North Am. Corp., 117 F.3d 154 (5th Cir. 1997).published
- United States v. Northrop Corp., 91 F.3d 1211 (9th Cir. 1996).published
v.
The UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, and Charles B. Wilson Laurence J. Marton Dennis F. Deen Burt G. Feurstein, Philip J. Tofilon the Regents of the University of California Brain Tumor Research Center University of California, United States of America, Amicus Curiae
OPINION
HALL, Circuit Judge:The M.D. Anderson Cancer Center of the University of Texas appeals the district court’s denial of its motion to dismiss, based on Eleventh Amendment immunity, a qui tam False Claims Act suit. We must decide whether the inapplicability of the Eleventh Amendment to suits brought by the United States extends to actions brought on the United States’ behalf by qui tam relators. Concluding that it does, we affirm.
I.
Relator Kathryn Milam is a post-doctoral cancer researcher. In' the mid-1980s, she was employed at the University of California’s Brain Tumor Research Center, a facility almost entirely supported by federal funds administered by the National Institute of Health (NIH).
Milam tried to replicate encouraging data supposedly generated in laboratory experiments conducted by another University of California researcher, Philip Tofilon, using NIH funds. She discovered that the results could not be replicated, and concluded that they were false.
Milam brought her findings to the attention of her superiors; she was instructed to keep quiet. She persisted in her efforts,[*48] however, and was fired. She was later reinstated, and an internal investigation by the University of California resulted in complete vindication of her position that the reported results were false.
Tofilon had moved on to the appellant M.D. Anderson Cancer Center of the University of Texas (the Center), where he continued to use the false data in grant applications. Through Freedom of Information Act requests in 1989, Milam discovered that the California and Texas facilities had, between them, obtained over $3 million in grants from NIH that would not have been awarded save for the false data.
On February 14, 1990, Milam filed this False Claims Act action, as qui tam relator for the United States, against the University of California, various officials at that University, and Tofilon. The United States exercised its statutory privilege to allow the relator to prosecute the case without active intervention by the government. 31 U.S.C. § 3730(b)(4)(B). In an amended complaint filed March 4, 1991, the Center was added as a defendant.
The Center moved to dismiss, arguing that it was immune from suit under the Eleventh Amendment. The district court denied the motion, and the Center appeals.
We have jurisdiction, though the case is still pending below, because denials of motions to dismiss based on Eleventh Amendment immunity from suit are immediately appealable. Foremost Guaranty Corp. v. Community Savings & Loan, Inc., 826 F.2d 1383 (4th Cir.1987).
II.
A.
At this juncture, relator Milam does not challenge the Center’s assertion that it is an agency of the State of Texas and enjoys the state’s Eleventh Amendment immunity. Moreover, the parties agree that the United States may sue states in federal courts notwithstanding the Eleventh Amendment. United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965); West Virginia v. United States, 479 U.S. 305, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987). Joining the union waives a state’s immunity from suit by the superior sovereign.
B.
The issue then is simply stated: is this a suit by the United States? As one might expect, cases on such a relatively obscure point are rare. In the most similar case we find, a district court held that states are not entitled to Eleventh Amendment immunity against qui tam suits under the False Claims Act. United States v. Rockwell International Corp., 730 F.Supp. 1031, 1035 (D.Colo.1990). The Second Circuit has stated that the United States is always the real party in interest in False Claims Act qui tam actions. Minotti v. Lensink, 895 F.2d 100, 104 (2nd Cir.1990); accord, United States ex rel. LaValley v. First National Bank of Boston, 625 F.Supp. 591 (D.N.H.1985); see Public Interest Bounty Hunters v. Board of Governors, 548 F.Supp. 157, 161 (N.D.Ga.1982) (qui tam plaintiff who filed frivolous suit, and not United States, is party-in-interest for purposes of awarding defendant attorney’s fees). For several reasons, we believe that the United States is the real party in interest here.
First of all, the False Claims Act is concerned solely with false claims submitted to the government. The Act does provide for suits brought by individuals, but only as qui tam relators “in the name of the Government.” 31 U.S.C. § 3730(b)(1). Hence, the plaintiff in this case is “United States of America ex rel. Kathryn Milam.” Moreover, Fed.R.Civ.Pr. 17(a) commands that “[ejvery action shall be prosecuted in the name of the real party in interest.” Unless the statute and rule are in conflict, the United States must be the real plaintiff in this suit.
When a qui tam action is brought on its behalf, the government may choose to intervene and pursue the action itself or to permit the relator to pursue the action without its intervention. Whichever course it chooses, the government is entitled to the lion’s share of any amount recovered.[*49] Where the government prosecutes the action, the relator gets 15-25% of the recovery; if the government does not intervene, the relator gets 25-30%. 31 U.S.C. § 3730(d)(lH2).
Even where the government allows the qui tam relator to pursue the action, the case may not be settled or voluntarily dismissed without the government’s consent.[1] Moreover, the government may change its mind and intervene at any point in the litigation “upon a showing of good cause.” 31 U.S.C. § 3730(c)(3).
In summary, the structure of the qui tam procedure, the extensive benefit flowing to the government from any recovery, and the extensive power the government has to control the litigation weigh heavily against the Center’s position.
C.
The history and purpose of qui tam suits is likewise unsupportive of the Center. Statutes authorizing qui tam suits are older than the Republic. Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 34, 50 L.Ed. 157 (1905) (discussing long history of practice). A qui tam relator is essentially a self-appointed private attorney general, and his recovery is analogous to a lawyer’s contingent fee. The relator has no personal stake in the damages sought — all of which, by definition, were suffered by the government. Id. (relator “ha[s] no interest whatever in the controversy other than that given by statute”). The government, and not the relator, must have suffered the “injury in fact” required for Article III standing. United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); United States ex rel. Truong v. Northrop Corp., 728 F.Supp. 615, 616-620 (C.D.Cal.1989); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp.
607, 614-615 (N.D.Cal.1989). We could not lightly conclude that the party upon whose standing the justiciability of the case depends is not the real party in interest.
Congress chose, as a means to encourage citizens to come forward with knowledge of frauds against the government, to give economic incentives to a qui tam plaintiff. In addition, it gave the Executive Branch the option to allocate its resources elsewhere and permit the relator to prosecute the action on its behalf. Through this procedure, Congress could reasonably have envisioned that more fraud would be discovered, more litigation could be maintained, and more funds would flow back into the Treasury.
On the other hand, perhaps Congress should have taken note of the possibility that states would be harassed by vexatious qui tam suits in federal courts. Perhaps it did, but decided that the benefits of the qui tam scheme outweighed its defects. In any event, we have no inclination or power to delve into the wisdom of the balance Congress struck.[2] United States ex rel. Marcus v. Hess, 317 U.S. 537, 546-547, 63 S.Ct. 379, 385, 87 L.Ed. 443 (1943) (policy arguments against qui tam suits were “addressed to the wrong forum”); see Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469 (1957) (“Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature’s range of choice.”). Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government. States and state agencies, like the Center, may prefer the dignity of being chased only by the regular troops; if so, they must seek relief from Congress.
[*50] D.
We hold that the United States is the real party in interest in any False Claims Act suit, even where it permits a qui tam relator to pursue the action on its behalf. The Center’s Eleventh Amendment immunity defense therefore evaporates, because states may be sued in federal courts by the United States.[3]
The judgment of the district court is affirmed.
In contrast, where the government does take over the case, it may dismiss or settle it without the consent of the relator. 31 U.S.C. § 3730(c)(2).
We note that Congress has twice struck a new balance when it perceived that the qui tam provisions of the False Claims Act were being overused, underused, or misused. See United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1497 (11th Cir.1991) (discussing 1943 and 1986 amendments).
The parties engage in a side argument over whether the states' Eleventh Amendment immunity was abrogated by the False Claims Act. On this point, the Department of Justice, as amicus, offers its only position: states most definitely may be sued under the False Claims Act.
We think that this is a non-issue. Ordinarily, statutes authorizing suits in federal courts must explicitly displace a state’s Eleventh Amendment immunity; silence leaves immunity intact. The False Claims Act is silent, but the states have no Eleventh Amendment immunity against the United States ab initio. Therefore, there is no reason Congress would have displaced it in the False Claims Act.