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    requested to notify the Reporter of Decisions, Supreme Court of the
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                       SUPREME COURT OF THE UNITED STATES

                                    --------
                                   No. 95-1340
                                    --------
                       HUGHES AIRCRAFT COMPANY, PETITIONER
                        v. UNITED STATES, EX REL. WILLIAM
                        __
                                   J. SCHUMER


       ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
                                  NINTH CIRCUIT

                                 [June 16,1997]

  JUSTICE THOMAS delivered the opinion of the Court.

  The qui tam provision of the False Claims Act (FCA or Act), 31 U. S. C.
      _______
S3730(b), permits, in certain circumstances, suits by private parties on behalf
of the United States against anyone submitting a false claim to the Government. 
Prior to 1986, such suits were barred if the information on which they were
based was already in the Government's possession.  At issue in this case is
whether a 1986 amendment to the FCA partially removing that bar applies
retroactively to qui tam suits regarding allegedly false claims submitted prior
                 _______
to its enactment and, if so, whether this particular action meets the
requirements of the amended Act.  We hold that the 1986 amendment does not apply
to this action and therefore that this action should have been dismissed, as
required by the 1982 version of the Act.
                                        I

  In December 1981, the Northrop Corporation awarded petitioner Hughes Aircraft
Company a subcontract to design and develop a radar system for the B-2 bomber,
which Northrop was then constructing under contract with the Air Force.  Both
Northrop's subcontract with Hughes and the Air Force's contract with Northrop
were

                                95-1340 - OPINION

2                   HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER
                                    __

"cost-plus" contracts, which provided that the subcontractor and the contractor,
respectively, were to be reimbursed for all costs properly incurred plus a
reasonable profit.  Several months after Hughes was awarded the B-2 subcontract,
the McDonnell-Douglas Corporation awarded Hughes a "fixed-price" subcontract to
design and develop an upgraded radar system for the F-15 fighter aircraft, which
McDonnell-Douglas was then building for the Air Force.  (Under the fixed-price
contract, Hughes was to receive a set price, regardless of costs).  When it
became apparent to Hughes that the projects overlapped in significant respects,
Hughes adopted two internal "commonality agreements" allocating between its F-15
and B-2 divisions various costs that were common to the two projects.
  After costs in the B-2 program escalated, Northrop requested a Government
audit of Hughes' accounting practices to ascertain whether Hughes had improperly
shifted costs from the fixed-price F-15 subcontract to the cost-plus B-2
subcontract.  The Air Force initially concluded, in a June 1986 preliminary
classified audit report, that Hughes had improperly billed the B-2 program for
certain development costs that should have been charged solely to the F-15
program.  Between October 1986 and September 1988, the Defense Contract Audit
Agency prepared a series of unclassified audit reports similarly concluding that
Hughes had misallocated costs between the two programs, and also concluding that
Hughes had not adequately disclosed the company's commonality accounting
practices in a Cost Accounting Standards report it had submitted to the Govern-
ment in 1984.  Based on those audits, the Government directed Northrop to
withhold $15.4 million in B-2 contract payments from
Hughes. (Ftnote. 1)
        (Ftnote. 1)






















                    
____________________

   1)  The Government ultimately reversed its preliminary determination,
   1)  
concluding that the commonality agreements had actually benefitted the Gov-
ernment by charging costs to the fixed-price F-15 program that otherwise would
have been borne solely by the cost-plus B-2 program.  Accordingly, the
Government withdrew its earlier finding of noncompliance, determined that any
noncompliance with accounting disclosure requirements was immaterial, and di-
rected that Hughes be paid the $15.4 million previously withheld on the B-2
project.  App. 136-137; App. to Pet. for Cert. 68a.

                                95-1340 - OPINION

                    HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER                   3
                                    __

  On January 20, 1989, respondent William J. Schumer, formerly the Division
Contracts Manager for Hughes' B-2 Division, commenced this action against Hughes
pursuant to 31 U. S. C. S3730(b), the qui tam provision of the FCA that
                                      _______
authorizes private individuals, "relators," to bring claims on behalf of the
United States against any person who knowingly presented false or fraudulent
claims to the United States in violation of S3729.  Schumer's complaint alleged
that Hughes knowingly mischarged Northrop - and through it the United States -
for certain radar development costs that should have been allocated to the
fixed-price F-15 subcontract with McDonnell-Douglas instead of to the cost-plus
B-2 subcontract with Northrop.  App. 72-80.  Schumer's amended complaint alleged
that Hughes' accounting practices resulted in a $50 million net overcharge, and
sought treble damages in the amount of $150 million.  Id., at
                                                      ____
102. (Ftnote. 2)
     (Ftnote. 2)
  Hughes moved to dismiss Schumer's action, contending that the 1986 FCA amend-
ment was not retroactive and that the qui tam provision in effect when Hughes
                                      _______
engaged in its allegedly wrongful conduct precluded qui tam suits based on
                                                    _______
information already possessed by the Government.  See 31 U. S. C. S3730(b)(4)
(1982 ed.).  Hughes argued in the alternative that the suit was

































                    
____________________

   2)  The Government chose not to intervene in the action, as it was entitled
   2)  
to do under 31 U. S. C. S3730(b)(2), nor did it move to dismiss the action, as
it was likewise entitled to do, see S3730(c)(2)(A).

                                95-1340 - OPINION

4                   HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER
                                    __

barred even under the 1986 version of the Act because it was "based upon the
public disclosure of allegations . . . in a[n] . . . administrative . . .
audit," within the meaning of 31 U. S. C.
S3730(e)(4)(A). (Ftnote. 3)  The District Court denied Hughes' motion.
                (Ftnote. 3)
  Hughes then moved for summary judgment on the merits, contending that it had
fully disclosed the basis of its cost accounting system to all of its customers
and had complied with all applicable contractual and regulatory requirements
relating to cost allocation.  After full briefing, the District Court concluded
that Hughes had allocated some costs between the F-15 and B-2 programs consis-
tent with disclosures Hughes made to Northrop, App. to Pet. for Cert. 46a, had
allocated other costs to the fixed-price F-15 contract that could have been
charged to the cost-plus B-2 contract alone (thereby benefitting the Govern-
ment), id., at 50a, and had properly disclosed the contents of the commonality
       _____
agreements to Northrop and the Air Force, id., at 46a-48a, 56a.  Accordingly,
                                          ____
the District Court held that "Schumer has not shown that Hughes violated the
False Claims Act."  Id., at 64a.
                    __
  Schumer appealed from the grant of summary judgment against him, and Hughes
cross-appealed from the denial of its motion to dismiss.  The Ninth Circuit
rejected Hughes' cross-appeal, holding that the 1986 amendment removing certain
defenses to qui tam suits should be applied retroactively to suits based on
            _______
pre-1986 conduct because the amendment involved only the "subject matter
jurisdiction" of courts to hear qui tam claims and did not affect the substan-
                                _______
tive liability of qui tam defendants.  63 F. 3d 1512, 1517 (1995).  The
                  _______



























                    
____________________

   3)  Hughes also raised several constitutional challenges to the qui tam
   3)                                                              _______
provisions of the Act that are not presently before us.  See 519 U. S. ___
(1996) (limiting grant of certiorari to the nonconstitutional questions
presented by the petition).

                                95-1340 - OPINION

                    HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER                   5
                                    __

court further determined that the action was not barred under the 1986 version
of the Act because no "public disclosure" of information possessed by the
Government had been made.  Id., at 1518.  Finally, the court reversed in part
                           ____
and remanded for further consideration on the merits, holding that a material
factual dispute existed as to whether Hughes had made misleading and incomplete
disclosures about its commonality agreements, whether or not the allegedly
incomplete disclosures resulted in any harm to the public fisc.  Id., at
                                                                 ____
1522-1525.
  We granted the petition for certiorari to consider whether the 1986 amendment
is applicable to pre-1986 conduct and, if so, whether the Government's release
of its audits to Hughes employees constituted a public disclosure bar under the
1986 amendment and whether harm to the public fisc is an essential element of a
qui tam action under the amended Act.  519 U. S. ___ (1996).  Because we
_______
conclude that the lower courts should not have applied the 1986 amendment and
therefore that this action should have been dismissed, we express no opinion as
to the Ninth Circuit's "public disclosure" and "public fisc" holdings, or as to
the merits of respondent's factual contentions.
                                       II
  The allegedly false claims at issue in this case were submitted by Hughes
between 1982 and 1984.  At that time, the FCA required a district court to
"dismiss [a qui tam] action . . . based on evidence or information the
            _______
Government had when the action was brought."  31 U. S. C. S3730(b)(4) (1982
ed.).  The Ninth Circuit accepted, and respondent does not dispute, that because
"the government was aware of [respondent's] allegations before he filed his
suit, the [1982 provision] would bar his claim," were it applicable.  63 F. 3d,
at 1517.
  Congress amended the FCA in 1986, however, to

                                95-1340 - OPINION

6                   HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER
                                    __

permit qui tam suits based on information in the Government's possession, except
       _______
where the suit was based on information that had been publicly disclosed and was
not brought by an original source of the information.  See 31 U. S. C.
S3730(e)(4)(A).  Because the 1986 amendment became effective before this suit
was commenced, respondent contends that it, rather than the 1982 qui tam
                                                                 _______
provision, controls.  We disagree.
  We have frequently noted, and just recently reaffirmed, that there is a
"presumption against retroactive legislation [that] is deeply rooted in our
jurisprudence."  Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994).  "The
                 ________    __________________
`principle that the legal effect of conduct should ordinarily be assessed under
the law that existed when the conduct took place has timeless and universal
appeal.'"  Ibid. (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494
           _____          ________________________________    _________
U. S. 827, 855 (1990) (SCALIA, J., concurring)).  Accordingly, we apply this
time-honored presumption unless Congress has clearly manifested its intent to
the contrary.  511 U. S., at 268.
  Nothing in the 1986 amendment evidences a clear intent by Congress that it be
applied retroactively, and no one suggests otherwise.  Thus, under the analysis
the Court adopted in Landgraf, if the 1986 amendment has a retroactive effect,
                     _________
then we presume it will not apply to the conduct alleged in this case, which
occurred prior to its effective date. (Ftnote. 4)
                                      (Ftnote. 4)
  Respondent argues that the 1986 amendment has no retroactive effect because it
does not fit within Justice Story's "influential definition" of impermissibly
retroactive legislation, which we quoted with approval in 


























                    
____________________

   4)  Because both the allegedly false claim submission and the disclosure to
   4)  
the Government of information about that submission occurred prior to the
effective date of the 1986 amendments, we need not address which of these two
events constitutes the relevant conduct for purposes of our retroactivity
analysis.

                                95-1340 - OPINION

                    HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER                   7
                                    __

Landgraf:
_________

   "`[E]very statute, which takes away or impairs vested rights acquired under
   existing laws, or creates a new obligation, imposes a new duty, or attaches a
   new disability, in respect to transactions or considerations already past,
   must be deemed retrospective.'"  511 U. S., at 269 (quoting Society for
                                                               ___________
   Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH
   _________________________    ________
   1814) (Story, J.)).

To the extent respondent contends that only statutes with one of these effects
                                       ____
are subject to our presumption against retroactivity, he simply misreads our
opinion in Landgraf.  The language upon which he relies does not purport to
           ________
define the outer limit of impermissible retroactivity.  Rather, our opinion in
Landgraf, like that of Justice Story, merely described that any such effect
_________
constituted a sufficient, rather than a necessary, condition for invoking the
              ___________               __________
presumption against retroactivity.  Indeed, we recognized that the Court has
used various formulations to describe the "functional conceptio[n] of
legislative `retroactivity,'" and made no suggestion that Justice Story's
formulation was the exclusive definition of presumptively impermissible
retroactive legislation.  511 U. S., at 269.
  In any event, even applying Justice Story's formulation, we reject
respondent's contention that the 1986 amendment lacks retroactive effect. 
Respondent first argues that the 1986 amendment does not "`impose new duties
with respect to transactions already completed'" because, since 1863, "the FCA
has made it unlawful to knowingly submit a false claim for payment to the United
States."  Brief for Respondent 15 (quoting Landgraf, supra, at 280).  The same
                                           _________ ______
argument was made, and rejected, in Landgraf.  There, we noted that the
                                    ________
provision of the 1991 Civil Rights Act authorizing compensatory damages "does
not make unlawful conduct

                                95-1340 - OPINION

8                   HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER
                                    __

that was lawful when it occurred," but we "[n]onetheless" held that "the new
compensatory damages provision would operate `retrospectively' if it were
applied to conduct occurring before" its effective date.  511 U. S., at 281-282;
see also Rivers v. Roadway Express, Inc., 511 U. S. 298, 303 (1994) (holding
         ______    ______________________
that an increase in monetary liability could not be applied retroactively even
though the "normative scope of Title VII's prohibition on workplace discrimina-
tion" was not altered).
  Respondent next contends that "the 1986 Amendments to the qui tam bar do not
                                                            _______
create a new cause of action where there was none before, change the substance
of the extant cause of action, or alter a defendant's exposure for a false claim
by even a single penny . . . [and] thus d[o] not `increase a party's liability
for past conduct.'"  Brief for Respondent 15 (quoting Landgraf, supra, at 280). 
                                                      _________ ______
See also Brief for United States as Amicus Curiae 13-14.  Again, respondent is
                                    _____________
mistaken.  While we acknowledge that the monetary liability faced by an FCA
defendant is the same whether the action is brought by the Government or by a
qui tam relator, the 1986 amendment eliminates a defense to a qui tam suit -
_______                                                       _______
prior disclosure to the Government - and therefore changes the substance of the
existing cause of action for qui tam defendants by "`attach[ing] a new
                             _______
disability, in respect to transactions or considerations already past.'" 
Landgraf, supra, at 269 (quoting Wheeler, supra, at 767); see also Brief for
_________ ______                 ________ ______
United States as Amicus Curiae 14, n. 6 ("[P]roof that the government had the
                 _____________
information when suit was brought was . . . a jurisdictional defense to an
action brought by a qui tam relator") (internal quotation marks omitted); cf.
Collins v. Youngblood, 497 U. S. 37, 49 (1990) ("A law that abolishes an
_______    ___________
affirmative defense" violates the Ex Post Facto Clause); Beazell v. Ohio, 269
                                  _____________          _______    _____
U. S. 167, 169-170 (1925) ("any statute . . . which deprives one charged with
crime of any defense available according to law at the time when the act was

                                95-1340 - OPINION

                    HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER                   9
                                    __

committed, is prohibited as ex post facto").
                            _____________
  Nor is it the case that the 1986 amendment does not "create a new cause of
action."  As respondent himself recognizes, "as a result of the 1986 Amendments,
the federal courts are open to an FCA action brought by a private relator on
behalf of the United States," whereas "[p]rior to 1986, once the United States
learned of a false claim, only the Government could assert its rights under the
FCA against the false claimant."  Brief for Respondent 16; see also Brief for
United States as Amicus Curiae 14 (recognizing that the 1986 amendment "expanded
                 _____________
the circumstances under which qui tam relators may pursue actions to enforce" a
                              _______
false claimant's liability to the Government).
  The extension of an FCA cause of action to private parties in circumstances
where the action was previously foreclosed is not insignificant.  As 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.  As we have previously recognized:

   "`[Qui tam statutes are] passed upon the theory, based on experience as old
      _______
   as modern civilization, that one of the least expensive and most effective
   means of preventing frauds on the Treasury is to make the perpetrators of
   them liable to actions by private persons acting, if you please, under the
   strong stimulus of personal ill will or the hope of gain.  Prosecutions
   conducted by such means compare with the ordinary methods as the enterprising
   privateer does to the slow-going public vessel.'"  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. Ore. 1885)).
   _________

Qui tam relators are thus less likely than is the Government to forego an action
_______
arguably based on a mere

                                95-1340 - OPINION

10                  HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER
                                    __

technical noncompliance with reporting requirements that involved no harm to the
public fisc. (Ftnote. 5)
             (Ftnote. 5)
  In permitting actions by an expanded universe of plaintiffs with different
incentives, the 1986 amendment essentially creates a new cause of action, not
just an increased likelihood that an existing cause of action will be pursued. 
See, e.g., Winfree v. Northern Pacific R. Co., 227 U. S. 296, 302 (1913).  Prior
     _____ _______    ________________________
to the 1986 amendment, respondent's qui tam action was completely barred because
                                    _______
of Hughes' disclosure to the Government of information about its claim
submissions.  The 1986 amendment would revive that action, subjecting Hughes to
previously foreclosed qui tam litigation, much like extending a statute of
                      _______
limitations after the pre-existing period of limitations has expired
impermissibly revives a moribund cause of action, see, e.g., Chenault v. U. S.
                                                       _____ ________    _____
Postal Service, 37 F. 3d 535, 537, 539 (CA9 1994) (relying on Landgraf in
_______________                                               ________
concluding that "a newly enacted statute that lengthens the applicable statute
of limitations may not be applied retroactively to revive a plaintiff's claim
that was otherwise barred under the old statutory scheme because to do so would
alter the substantive rights of a party and increase a party's
liability") (internal quotation marks omitted).  This is true even if a cause
of action remained open to some other party.  It is simply not the case that, as
respondent asserts, the elimination of a prior defense to qui tam actions does
                                                          _______
not "create a new cause of action" or "change the substance of the extant cause
of action."
  Finally, respondent contends that the 1986 amendment


























                    
____________________

   5)  That a qui tam suit is brought by a private party "on behalf of the
   5)         _______
United States," see Brief for Respondent 17, does not alter the fact that a
relator's interests and the Government's do not necessarily coincide.  Moreover,
as the statute specifies, qui tam actions are brought both "for the person and
                          _______                           ______________
for the United States Government."  31 U. S. C. S3730(b)(1) (emphasis added).

                                95-1340 - OPINION

                    HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER                  11
                                    __

is jurisdictional, and hence that it is an exception to the general Landgraf
                                                                    ________
presumption against retroactivity.  Indeed, the Ninth Circuit went further,
holding that, absent a clear statement of congressional intent, there is a
strong presumption in favor of retroactivity for jurisdictional statutes.  63 F.
                   ___________
3d, at 1517.  The Ninth Circuit simply misread our decision in Landgraf, for the
                                                               _________
only "presumption" mentioned in that opinion is a general presumption against
                                                                      _______
retroactivity.  The fact that courts often apply newly enacted jurisdiction-
allocating statutes to pending cases merely evidences certain limited
circumstances failing to meet the conditions for our generally applicable
presumption against retroactivity, not an exception to the rule itself, as the
United States recognizes.  See Brief for United States as Amicus Curiae 15, and
                                                          _____________
n. 8.  As we stated in Landgraf:
                       _________

   "Application of a new jurisdictional rule usually `takes away no substantive
   right but simply changes the tribunal that is to hear the case.'  Present
                    ________
   law normally governs in such situations because jurisdictional statutes
   `speak to the power of the court rather than to the rights or obligations of
   the parties.'"  511 U. S., at 274 (emphasis added, citations omitted).

Statutes merely addressing which court shall have jurisdiction to entertain a
                           ______
particular cause of action can fairly be said merely to regulate the secondary
conduct of litigation and not the underlying primary conduct of the parties. 
Cf. id., at 275; id., at 291 (SCALIA, J., concurring).  Such statutes affect
    ____         ____
only where a suit may be brought, not whether it may be brought at all.  The
     _____                            _______
1986 amendment, however, does not merely allocate jurisdiction among fora. 
Rather, it creates jurisdiction where none previously existed; it thus speaks
           _______
not just to the power of a particular court but to the substantive rights of the
parties as well.  Such a statute, even though

                                95-1340 - OPINION

12                  HUGHES AIRCRAFT v. U. S. EX REL. SCHUMER
                                    __

phrased in "jurisdictional" terms, is as much subject to our presumption against
retroactivity as any other.
                                       III
  In sum, whether we consider the relevant conduct to be Hughes' disclosure to
the Government or its submission of the allegedly false claim, disclosure of
information about the claim to the Government constituted a full defense to a
qui tam action prior to 1986.  If applied in this case, the legal effect of the
_______
1986 amendment would be to deprive Hughes of that defense.  Given the absence of
a clear statutory expression of congressional intent to apply the 1986 amendment
to conduct completed before its enactment, we apply our presumption against
retroactivity and hold that, under the relevant 1982 version of the FCA, the
District Court was obliged to dismiss this action because it was "based on
evidence or information the Government had when the action was brought."  31
U. S. C. S3730(b)(4) (1982 ed.).  We therefore vacate the judgment below, and
remand for further proceedings consistent with this opinion.

                                                               It is so ordered.
                                                               ________________