In Vermont
Agency of Natural Resources v. United States ex rel. Stevens,
Case No. 98-18-28, the United States Supreme Court instructed the
parties to brief the issue of whether the Eleventh Amendment to the
United States Constitution allows qui tam relators to sue states
for defrauding the federal government. The Vermont Agency of Natural
Resources case was before the Supreme Court on other issues unrelated
to the question of standing. However, just ten days before oral argument
was scheduled in Vermont Agency, the Supreme Court, on its
own motion and without explanation, asked the parties to brief the
question of whether relators had constitutional standing to sue. Briefs
were due the day after the argument, a sequence that the Supreme Court
rarely, if ever, has used before.
At
the argument in Vermont Agency, Vermont Deputy Attorney General,
Wallace Malley, pointed out that relators do not even have to allege
that they themselves have suffered a personalized injury in fact
in order to have standing to bring a suit under the False Claims
Act. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),
the United States Supreme Court established the standard for standing
as being "a personalized injury in fact".
During
the oral argument, in Vermont Agency, Justices O'Conner and
Rhenquist mentioned qui tam';s long pedigree (the statute
has been around since 1863), even though Justice Scalia pointed
out that many common law traditions would not comport with modern
standing doctrine.
At
this point it is uncertain whether or not the Justices will directly
address the issue of standing. In any event, the relators bar and
defense counsel are anxiously awaiting the Court's decision.
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