United States v. State of Texas

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 98-50605 _______________________

UNITED STATES OF AMERICA, ex rel., JAMES M. CHURCHILL,

Plaintiff-Appellee,

versus

STATE OF TEXAS, ET AL,

Defendants,

STATE OF TEXAS; TEXAS DEPARTMENT OF HUMAN SERVICES; TEXAS DEPARTMENT OF HEALTH; TEXAS HEALTH & HUMAN SERVICES COMMISSION,

Defendants-Appellants. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (P-97-CV-57) _________________________________________________________________

August 5, 1999

Before JONES and WIENER, Circuit Judges, and LITTLE,* District Judge.

BY THE COURT:**

This appeal involves a qui tam action brought under the

False Claims Act against the State of Texas and several state

entities. This interlocutory appeal arises from the district

court’s denial of the state defendants’ motion to dismiss on

grounds of sovereign immunity. As all parties agree, the appeal is

* District Judge of the Western District of Louisiana, sitting by designation. ** Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4. controlled by this court’s recent decision in United States ex rel.

Foulds v. Texas Tech. Univ., 171 F.3d 279, 294 (5th Cir. 1999)

(“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”).

Accordingly, the district court’s order denying the state

defendants’ motion to dismiss is REVERSED, and the case is REMANDED

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

State of Texas, the Texas Department of Human Services, the Texas

Department of Health, and the Texas Health and Human Services

Commission.

REVERSED and REMANDED for Entry of Judgment Dismissing

Appellants.