           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 25, 2009

                                     No. 08-31140                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



United States of America, ex rel, DONALD PATRICK J ADRIAN

                                                   Plaintiff - Appellant
v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

                                                   Defendant
v.

UNITED STATES OF AMERICA,

                                                   Appellee




                   Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:02-CV-381


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Donald Adrian seeks review of the district court’s denial of his
motion to reopen. We affirm.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                          I
      In 1999, Adrian filed a sealed complaint under the qui tam provision of the
False Claims Act (“FCA”), 31 U.S.C. § 3730(b), against, inter alia, the Regents
of the University of California (the “Regents”) and certain Louisiana-based
defendants in the Northern District of California. The United States declined
to intervene.   The California district court granted the Regents’ motion to
dismiss for failure to state a claim upon which relief could be granted in light of
Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S.
765 (2000), in which the Supreme Court held that suits against state agencies
cannot be brought under the FCA. United States ex rel. Adrian v. Regents of the
Univ. of Cal., No. C 99-3864 TEH, 2002 U.S. Dist. LEXIS 3321, at *6–9 (N.D.
Cal. Feb. 25, 2002). The California court also granted the Louisiana-based
defendants motion to transfer the case to the Western District of Louisiana. Id.
at *9–14.    The Louisiana district court subsequently dismissed the claims
against the Louisiana defendants, and Adrian appealed both dismissals to this
Court. We affirmed. United States ex rel. Adrian v. Regents of the Univ. of Cal.,
363 F.3d 398, 401–04 (5th Cir. 2004).
      On September 29, 2008, Adrian filed a motion to reopen, citing Rules 54(b)
and 60(b) and alleging that he is entitled to a share of the proceeds of a
settlement agreement (the “Settlement”) reached by the Regents and the United
States while Adrian’s first appeal to this Court was still pending and which
covered, inter alia, the claims in Adrian’s qui tam complaint.1 Under the terms
of the Settlement, the United States agreed to file a motion or stipulation to



      1
        Adrian also filed a separate lawsuit, not at issue here, seeking a share of the
Settlement.

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dismiss Adrian’s claims against the Regents with prejudice if this Court reversed
their dismissal.       The district court denied his motion, and Adrian timely
appealed.
                                               II
       A district court’s decision as to whether a judgment is final is reviewed de
novo. See Waldorf v. Shuta, 142 F.3d 601, 608 (3d Cir. 1998). “The decision to
grant or deny 60(b) relief lies in the sound discretion of the district court and will
be reversed only for an abuse of that discretion.” Provident Life & Accident Ins.
Co. v. Goel, 274 F.3d 984, 997 (5th Cir. 2001) (quotation omitted).
                                               III
       Adrian argues that (1) no final judgment has been entered in his qui tam
suit because his statutory entitlement to a share of the proceeds from the
Settlement has never been adjudicated,2 and (2) he is in any case entitled to
relief from judgment under Rule 60(b)(6) because the United States failed to
notify him of the Settlement. 3 With respect to the first argument, there is no
doubt that the judgment entered disposed of all the claims before the district
court. That Adrian now wishes to raise new claims and arguments on the basis
of facts not before the district court does not affect the judgment’s finality under
Rule 54(b)—that situation is properly addressed under Rule 60(b).
       Adrian’s argument under Rule 60(b) is based on the premise that he is


       2
         See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may be revised at any time before
the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”)
       3
           See Fed. R. Civ. P. 60(b) (“On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or proceeding for the following reasons:
. . . (6) any other reason that justifies relief.”).

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entitled to a share of the Regents’ payment to the United States under 31 U.S.C.
§ 3730(c)(5), which preserves the rights of qui tam plaintiffs when the
Government pursues an “alternate remedy.” See United States ex rel. Bledsoe
v. Cmty. Health Sys., 342 F.3d 634, 647 (6th Cir. 2003) (an “‘alternate remedy’
[for the purposes of 31 U.S.C. § 3730(c)(5)] refers to the government’s pursuit of
any alternative to intervening in a relator’s qui tam action.”). As several of our
sister circuits have held, however, under the FCA a relator may only share in the
proceeds of an alternate remedy if he or she has a valid complaint:
      [A] relator is not entitled to a share in the proceeds of an alternate
      remedy when the relator’s qui tam action under § 3729 is invalid:
      As § 3730(c)(5) provides, a relator’s rights in an alternate remedy
      proceeding are the “same rights” that the relator would have had if
      the action had proceeded under the FCA. The relator’s rights to a
      qui tam award in an FCA action are delineated in § 3730(d), which
      section applies only in “an action brought by a person under
      subsection (b).” Id. § 3730(d)(1). Subsection (b), in turn, refers to an
      action brought for “a violation of section 3729.” Id. § 3730(b)(1).
      The statute evinces no intent to compensate relators who bring
      unfounded § 3729 claims, whether the claims are legally or factually
      unfounded.

United States ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 F.3d 103, 112 (3d
Cir. 2007); see United States ex rel. Bledsoe v. Cmty. Health Sys., 501 F.3d 493,
522 (6th Cir. 2007) (“Absent a valid complaint which affords a relator the
possibility of ultimately recovering damages, there is no compelling reason for
allowing a relator to recover for information provided to the government.”); see
also Donald v. Univ. of Cal. Bd. of Regents, 329 F.3d 1040, 1044 (9th Cir. 2003)
(holding that relators had no right of recovery in a suit in which the United
States intervened and settled because “[a] private party . . . has a legal right to
recovery only from a qui tam action brought pursuant to § 3730(b)(1), which is

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in turn dependent on the private party having a valid cause of action under
§ 3729(a)” and relators did not have a valid cause of action in light of Stevens).
Because, as we have already held, Adrian did not have a valid qui tam claim
against the Regents, Adrian, 363 F.3d at 404, he was not entitled to share in the
proceeds of the Settlement, and, therefore, the district court did not abuse its
discretion in denying his motion to reopen under Rule 60(b).
                                       IV
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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