UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA EX REL

PAMELA A. BERGE,

Plaintiff-Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF

ALABAMA AT BIRMINGHAM; ROBERT F.

PASS, Professor of Pediatrics; SERGIO

B. STAGNO, Professor and Chairman, No. 99-1270

Department of Pediatrics; CHARLES

A. ALFORD, Professor of Pediatrics;

KAREN B. FOWLER,

Defendants,

and

UNITED STATES OF AMERICA,

Creditor-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge;

Edward S. Northrop, Senior District Judge.

(CA-93-158-N)

Argued: December 1, 1999

Decided: February 2, 2000

Before MURNAGHAN and WILKINS, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Alexander T. Bok, DANGEL & FINE, L.L.P., Boston,

Massachusetts, for Appellant. Kaye A. Allison, Assistant United

States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:

Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Pamela Berge brought a qui tam action pursuant to section 3730(b)

of the False Claims Act (the FCA), 31 U.S.C.A. §§ 3729-3733 (West

1983 & Supp. 1999). Her claim was ultimately unsuccessful. See

United States ex rel. Berge v. Board of Trustees, 104 F.3d 1453 (4th

Cir. 1997). At the request of the prevailing defendants, the district

court awarded costs pursuant to Federal Rule of Civil Procedure

54(d)(1). In response to a motion by the United States, the court

entered a clarifying order specifying that the costs should be taxed to

Berge. The court subsequently denied Berge's motion for reconsideration. Berge appeals the latter two orders. Because we conclude that

the United States has not waived its sovereign immunity and thus cannot be held liable for costs, we affirm.

I.

Section 3729 of Title 31 of the United States Code imposes a civil

penalty against anyone who knowingly makes a false claim against

the United States Government. See 31 U.S.C.A. § 3729. The FCA

provides that a private person (known as the qui tam relator) may

bring a civil action for a violation of § 3729 on behalf of both the

relator and the United States. See id. § 3730(b)(1). A complaint

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brought by a relator pursuant to § 3730(b) must be served on the

United States and the complaint must remain sealed for at least 60

days, during which time the United States "may elect to intervene and

proceed with the action." Id. § 3730(b)(2). The statute further provides that

[b]efore the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shall--

 (A) proceed with the action, in which case the action shall

be conducted by the Government; or

 (B) notify the court that it declines to take over the action,

in which case the person bringing the action shall have the

right to conduct the action.

Id. § 3730(b)(4). After the United States makes its election, the defendant is served and the action proceeds. Even if the United States

declines to intervene initially, the court may permit it to do so at a

later time during the course of the action. See id. § 3730(c)(3) ("When

a person proceeds with the action, the court ... may nevertheless permit the Government to intervene at a later date upon a showing of

good cause."). If an action initiated by a qui tam relator is successful,

the relator and the United States share the award; the proportion to

which a relator is entitled differs depending on whether the United

States elected to proceed with the action. See id. § 3730(d).

Berge filed her action in 1993 as qui tam relator for the United

States against the Regents of the University of Alabama at Birmingham and various individual defendants (collectively,"Defendants")

alleging that Defendants had made false statements to the National

Institutes of Health in violation of 31 U.S.C.A.§ 3729. The United

States declined to intervene, and Berge proceeded with the action.

Berge obtained a jury verdict in her favor. Defendants moved for

judgment as a matter of law and a new trial, and the district court

denied these motions.

Defendants presented several arguments on appeal, including a

challenge to the constitutionality of the qui tam provisions of the

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FCA. The United States intervened in the appeal pursuant to 28

U.S.C.A. § 2403(a) (West 1994) in order to defend the constitutionality of the statute. Avoiding the constitutional issues, we reversed the

judgment of the district court on the merits of the case. See Berge,

104 F.3d at 1457.

Following the reversal of the judgment, Defendants petitioned for

an award of costs pursuant to Rule 54(d)(1). After the district court

awarded costs, the United States filed a motion requesting the court

to clarify that the costs should be taxed to Berge. The district court

entered a clarifying order and then denied Berge's motion for reconsideration; Berge appeals these orders.

II.

Rule 54(d)(1) provides in pertinent part that

[e]xcept when express provision therefor is made either in

a statute of the United States or in these rules, costs other

than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs

against the United States, its officers, and agencies shall be

imposed only to the extent permitted by law.

Fed. R. Civ. P. 54(d)(1). Berge does not argue that the district court

erred in awarding costs pursuant to Rule 54(d)(1); accordingly, the

issue before us is who, as between Berge and the United States,

should pay those costs.

It is well settled that sovereign immunity prohibits an award of

costs against the United States unless immunity is specifically waived

by act of Congress. See United States v. Chemical Found., Inc., 272

U.S. 1, 20-21 (1926). Such a waiver "must be unequivocally

expressed in the statutory text." United States v. Idaho ex rel. Director, Idaho Dep't of Water Resources, 508 U.S. 1, 6 (1993) (internal

quotation marks omitted); see United States v. Nordic Village, Inc.,

503 U.S. 30, 37 (1992) (stating that when there are plausible readings

of a statutory provision that would not give rise to an imposition of

monetary liability on the Government, there has not been the requisite

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"unequivocal expression of elimination of sovereign immunity"

(internal quotation marks omitted)). Moreover, a waiver of immunity

"must be construed strictly in favor of the sovereign." Ruckelshaus v.

Sierra Club, 463 U.S. 680, 685 (1983) (internal quotation marks omitted).

Rule 54(d)(1) codifies the principle of sovereign immunity, providing that costs may be taxed against the United States "only to the

extent permitted by law." Fed. R. Civ. P. 54(d)(1). Thus, we must

determine whether the United States has waived its sovereign immunity. This is a question of law subject to de novo review. See

Research Triangle Inst. v. Board of Governors, 132 F.3d 985, 987

(4th Cir. 1997).

Berge argues that the FCA reflects a balancing by Congress of

financial burdens between the relator and the United States, and that

it was the intent of Congress that the United States should pay the

defendant's costs in an unsuccessful action. We cannot consider this

argument in light of the above rules regarding waiver. If Congress has

not made a clear statutory statement to effectuate a waiver of immunity, either in the FCA or elsewhere, then the costs of this litigation

may not be imposed against the United States.

The FCA itself does not contain an unequivocal waiver of sovereign immunity for an award of costs in a situation such as that before

us. Only two subsections address the situation where the defendant

prevails. The first, § 3730(d)(4), is clearly not applicable here. See 31

U.S.C.A. § 3730(d)(4) (providing for an award of fees to the defendant when the qui tam relator has brought an action that was "clearly

frivolous, clearly vexatious, or brought primarily for purposes of

harassment"). The second, § 3730(g), which is captioned "Fees and

expenses to prevailing defendant," provides that"[i]n civil actions

brought under this section by the United States, the provisions of section 2412(d) of title 28 shall apply." Id. § 3730(g) (emphasis added).

The United States did not bring this action. The United States

declined to "intervene and proceed with the action" pursuant to 31

U.S.C.A. § 3730(b)(2). Neither did the United States later intervene

pursuant to § 3730(c)(3). The United States intervened in the earlier

appeal pursuant to 28 U.S.C.A. § 2403(a) solely for the purpose of

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defending the constitutionality of the qui tam provisions of the FCA.

Significantly, the United States did not intervene for the purpose of

arguing the merits of the claim.1 Consequently, it cannot be understood to have "brought" the action in any sense of that term,2 especially in view of the requirement that a statutory waiver of immunity

be strictly construed. See Sierra Club, 463 U.S. at 685. Therefore,

§ 3730(g) does not apply to this case and cannot authorize an award

of costs against the United States.3

Looking outside the FCA, we note that Congress provided for a

waiver of sovereign immunity in 28 U.S.C.A. § 2412(a)(1) (West

1994). As part of the Equal Access to Justice Act, Congress reversed

the longstanding presumption that costs could not be awarded against

the United States:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title,

but not including the fees and expenses of attorneys, may be

awarded to the prevailing party in any civil action brought

by or against the United States ... in any court having jurisdiction of such action.

28 U.S.C.A. § 2412(a)(1) (emphasis added). See generally 10 Charles

Alan Wright et al., Federal Practice and Procedure § 2672 (3d ed.

1998) (discussing law permitting litigation costs to be awarded to or

against the United States). Thus, the United States has waived its

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1 The only other participation in this case by the United States, prior to

this appeal, was its submission of a brief in its role as judgment-creditor,

in which it opposed Defendants' motion for a stay of proceedings to

enforce judgment pending appeal and for a waiver of security.

2 Because the United States never intervened in the action pursuant to

the FCA, we need not consider whether such an intervention could constitute "bringing" the action for the purpose of waiving sovereign immunity.

3 Because § 3730(g) does not apply here, we need not resolve the

debate between the parties regarding whether "fees and expenses"

include "costs." See United States ex rel. Lindenthal v. General Dynamics Corp., 61 F.3d 1402, 1412-14 (9th Cir. 1995) (reasoning that under

the FCA "costs" are distinct from "fees and expenses").

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immunity in any action "brought by" it. But as we explained above,

"bringing" an action requires more on the part of the United States

than occurred here.

In summary, the FCA contains no provision that could be construed as authorizing an award of costs against the United States in

this case. The United States waives its sovereign immunity to allow

the taxation against it of costs to a prevailing party only in actions

which are "brought" by the United States. When a relator brings a qui

tam action and the United States declines to intervene in that action

pursuant to the FCA, the United States has not "brought" that action.

Therefore, we hold that the United States has not waived its sovereign

immunity here, and the costs must be assessed against Berge.

III.

For the reasons set forth above, we conclude that the district court

correctly taxed costs against Berge in this FCA action. Accordingly,

we affirm.

AFFIRMED

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