     Case: 12-20795      Document: 00512429000         Page: 1    Date Filed: 11/04/2013




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

                                                                                FILED
                                                                           November 4, 2013
                                      No. 12-20795
                                                                             Lyle W. Cayce
                                                                                  Clerk


United States of America, ex rel, TERRI KING,

              Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER - HOUSTON,

              Defendant - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:11-CV-18



Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit
Judges.
PER CURIAM: *
       Terri King (“King”) appeals the district court’s dismissal of claims she
brought on behalf of the United States for alleged violations of the False
Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq. The district court dismissed
King’s claims for lack of subject-matter jurisdiction and for failure to state a
claim upon which relief can be granted, holding that the University of Texas

       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th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.
    Case: 12-20795    Document: 00512429000      Page: 2   Date Filed: 11/04/2013


                                  No. 12-20795

Health Science Center-Houston (“UTHSCH” or “the Center”) is not subject to
suit under the FCA’s qui tam provisions and, in addition, is entitled to
sovereign immunity. We AFFIRM.


                       FACTS AND PROCEEDINGS
      King is a former associate professor at UTHSCH. From 2001–2005, she
served in the Center’s Department of Internal Medicine. In 2005, she
accepted a position in the Center’s Department of Pediatrics. In March of
2001, King began working as a statistician and geneticist in a research lab
under Dr. Dianna M. Milewicz’s supervision. Milewicz’s research focused on
thoracic aortic dissection. According to King’s complaint, she began to notice
discrepancies in Milewicz’s data in 2004. King alleges that “[w]hen she began
to bring these discrepancies to the attention of Milewicz, Milewicz began a
retaliatory campaign against King that began with the writing of a false and
defamatory employee performance review.”
      King filed suit on January 4, 2011, alleging that Milewicz falsified
research data and results and failed to obtain her human research subjects’
written informed consent. She claims that the fraud was in connection with
government-funded research and that Milewicz used falsified results in order
to obtain federal funding. The Center is claimed to have defrauded the
federal government by, among other things, covering up Milewicz’s
misconduct relating to federal research grants. King also claims that the
Center retaliated against her for reporting this misconduct by hampering her
research, relocating her to less favorable positions, and constructively firing
her when she continued to raise concerns.
      King’s complaint alleges that the Center’s actions constituted false
claims under the FCA because, among other things, it “failed to fully


                                        2
     Case: 12-20795      Document: 00512429000        Page: 3    Date Filed: 11/04/2013


                                      No. 12-20795

investigate and fraudulently covered up research misconduct by Milewicz in
an effort to allow her and other researchers full access to federal grants for
research.” King also asserts a private action for retaliation and wrongful
termination under the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h),
because “UTHSCH demoted King in retaliation[,] . . . derailed any chance of
King becoming a tenured member of the faculty at UTHSCH[,] . . . and
ultimately terminated King as a result of her reports of research misconduct.”
On February 22, 2012, the United States filed notice that it was not
intervening.
      On May 9, 2012, UTHSCH moved to dismiss King’s complaint on three
separate grounds: (1) UTHSCH, as a state agency, is not subject to liability
under the FCA; (2) sovereign immunity bars King’s FCA claims; and (3)
King’s complaint did not comply with the particularity requirements of Rule
9(b) of the Federal Rules of Civil Procedure. The district court granted the
Center’s motion on October 31, 2012, dismissing the case in its entirety “for
lack of subject matter jurisdiction and for failure to state a claim upon which
relief can be granted.” 1 King appeals.


                             STANDARD OF REVIEW
      “We review a district court's ruling on a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction de novo.” Raj v. La. State Univ., 714
F.3d 322, 327 (5th Cir. 2013). This court also “review[s] a district court’s
dismissal under Rule 12(b)(6) de novo, accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiffs.” Doe ex
rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th


      1  Because the district court focused on the Center’s sovereign immunity and whether
it was subject to suit under the FCA’s qui tam provisions, it did not address UTHSCH’s
arguments under Rule 9(b).
                                            3
    Case: 12-20795     Document: 00512429000     Page: 4    Date Filed: 11/04/2013


                                  No. 12-20795

Cir. 2012) (internal quotation marks omitted). Finally, “sovereign immunity
is a question of law which this court reviews de novo.” Koehler v. United
States, 153 F.3d 263, 265 (5th Cir. 1998); see also Khan v. S. Univ. & Agric. &
Mech. Coll. Bd. of Supervisors, No. 03-30169, 2005 WL 1994301, at *2 (5th
Cir. Aug. 19, 2005).


                                 DISCUSSION
      King challenges the district court’s dismissal of her qui tam claim
based on its finding that UTHSCH is an “arm of the state,” its holding that
the Center is entitled to sovereign immunity from her retaliation claim, and
its dismissal of her complaint without first granting King an opportunity to
amend. UTHSCH claims that this court lacks jurisdiction over King’s appeal
because she failed to timely file her notice of appeal and, as a matter of law,
did not show excusable neglect or good cause in her request for an extension
of time.


I. Timeliness of King’s Appeal
      “[T]he taking of an appeal within the prescribed time is mandatory and
jurisdictional.”   Bowles v. Russell, 551 U.S. 205, 209 (2007) (internal
quotation marks omitted). Under 28 U.S.C. § 2107(a), parties must file notice
of appeal “within thirty days after the entry of [any civil] judgment, order or
decree.” See also Fed. R. App. Proc. 4(a)(1)(A). But “[t]he district court may,
upon motion filed not later than 30 days after the expiration of the time
otherwise set for bringing appeal, extend the time for appeal upon a showing
of excusable neglect or good cause.” 28 U.S.C. § 2107(c).
      The district court entered its order of dismissal on October 31, 2012.
King filed her notice of appeal, along with a motion for extension of time


                                       4
    Case: 12-20795    Document: 00512429000     Page: 5   Date Filed: 11/04/2013


                                 No. 12-20795

pursuant to Federal Rule of Procedure 4(a)(5), on December 5, 2012, thirty-
five days later. Although she acknowledges that her appeal was late, she
argues there was “excusable neglect” because her attorneys initially believed
that because the United States was the “real party in interest” in FCA qui
tam actions, Rule 4(a)(1)(B) applied, giving them sixty days to file the notice
of appeal. Her attorneys had busy trial dockets during November, and did
not realize until early December that, under United States ex rel. Eisenstein
v. City of New York, 556 U.S. 928 (2009), the thirty-day deadline for filing a
notice of appeal applies in FCA qui tam actions in which the United States
has not intervened.
      The Fifth Circuit follows the Supreme Court’s guidance in determining
when to permit extensions of time under Rule 4(a)(5).
      When evaluating excusable neglect under Rule 4(a)(5), this court
      relies on the following standard:

      The determination is at bottom an equitable one, taking account
      all of the relevant circumstances surrounding the party’s
      omission. These include . . . the danger of prejudice . . . , the
      length of the delay and its potential impact on judicial
      proceedings, the reason for the delay, including whether it was
      within the reasonable control of the movant, and whether the
      movant acted in good faith.

Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 820 (5th Cir. 2007)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395
(1993)). We review a ruling on a Rule 4(a)(5) motion for excusable neglect for
abuse of discretion. Id.
      UTHSCH claims that the district court abused its discretion by
allowing King’s Rule 4(a)(5) extension. The Center cites two cases for the
propositions that neither ignorance of the rules nor counsel’s busy law
practice is sufficient to establish excusable neglect, Pioneer, 507 U.S. at 395,

                                       5
     Case: 12-20795       Document: 00512429000          Page: 6      Date Filed: 11/04/2013


                                        No. 12-20795

and ignorance of the law does not excuse the failure to comply with a
deadline that is unambiguous. Halicki v. La. Casino Cruises, Inc., 151 F.3d
465, 470 (5th Cir. 1998).
        The Center overstates Pioneer’s holding.              The Court held only that
counsels’ failure to file on time could be imputed to their clients, and did not
create rigid rules forbidding extensions of time based on ignorance of the
rules or an attorney’s workload. Pioneer, 507 U.S. at 397–98. Indeed, the
Pioneer court focused on “the respondents’ good faith and the absence of any
danger of prejudice . . . or of disruption to efficient judicial administration
posed by the late filings.” Id. at 397. The delay here was only five days and
did not prejudice UTHSCH. Pioneer does not compel us to find an abuse of
discretion in the district court’s grant of King’s motion for an extension of
time.
        Nor does our opinion in Halicki foreclose a finding of excusable neglect
in this case.         In Halicki, we rejected a litigant’s contention “that
misconstruction of procedural rules necessarily should result in a finding of
‘excusable neglect’ where no prejudice results to the opposing party.” Halicki,
151 F.3d at 469 (emphasis in original).                       We did not hold that
misinterpretation of the rules could never constitute excusable neglect. And
although we stated that “a district court’s determination that the neglect was
inexcusable     is   virtually     unassailable”      when     “the    rule   at   issue    is
unambiguous,” id. at 470, this observation does not control our review of a
district court’s finding that the neglect was excusable. 2

        2We also agree with the district court’s finding that “Rule 4(a)(1)(B)’s language
permitting a notice of appeal to be filed within 60 days of the trial court’s judgment when
the United States is a party to the case is ambiguous in the context of FCA qui tam
actions.” Although King’s counsel should have known that Eisenstein held the 30-day rule
to apply to FCA qui tam actions, “‘excusable neglect’ is understood to encompass situations
in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer,
507 U.S. at 394.
                                              6
    Case: 12-20795     Document: 00512429000     Page: 7   Date Filed: 11/04/2013


                                  No. 12-20795

      “Given the leeway granted to district courts” when evaluating
excusable neglect, Stotter, 508 F.3d at 820, we hold that the district court did
not abuse its discretion in granting King’s motion for an extension of time to
file her notice of appeal.


II. Ability to Sue UTHSCH Under the FCA’s Qui Tam Provision
      The FCA imposes liability to “any person who . . . knowingly presents,
or causes to be presented, a false or fraudulent claim for payment or
approval” or “knowingly makes, uses, or causes to be made or used, a false
record or statement material to a false or fraudulent claim.”          31 U.S.C
§ 3729(a)(1)(A)–(B) (emphasis added). In Stevens, the Supreme Court held
“that the False Claims Act does not subject a State (or state agency) to
liability” because neither a state nor state agency falls within the FCA’s
definition of a “person.” Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529
U.S. 765, 787–88 (2000).
      King argues that the district court erred in dismissing her qui tam
claims “by erroneously concluding that UTHSCH is an arm of the State of
Texas and thus . . . not a ‘person’ who can be liable under the federal False
Claims Act.” In her opening brief, King states also that “[t]he Stevens case
was wrongly decided,” that it “created an unwarranted exception to the FCA
for states and state agencies,” and that “[i]t is error to dismiss the qui tam
claims against UTHSCH when Stevens should instead be reversed.” Because
we lack the authority to reverse Supreme Court decisions, we focus instead
on her arguments that UTHSCH is not an “arm of the state.”
      In Stevens, the Supreme Court stated that in cases where defendants
move for dismissal on both statutory and Eleventh Amendment grounds,
courts should address the statutory question first:


                                       7
    Case: 12-20795    Document: 00512429000      Page: 8   Date Filed: 11/04/2013


                                  No. 12-20795

      We . . . have routinely addressed before the question whether the
      Eleventh Amendment forbids a particular statutory cause of
      action to be asserted against States, the question whether the
      statute itself permits the cause of action it creates to be asserted
      against States (which it can do only by clearly expressing such
      an intent). When these two questions are at issue, not only is
      the statutory question “logically antecedent to the existence of”
      the Eleventh Amendment question, but also there is no realistic
      possibility that addressing the statutory question will expand
      the Court’s power beyond the limits that the jurisdictional
      restriction has imposed.

Stevens, 529 U.S. at 779 (internal citations omitted). Pursuant to Stevens, we
address first whether the FCA allows for King’s suit against the UTHSCH.
      As did the district court, we evaluate whether the Center is an arm of
the state using the six-factor test set forth in Clark v. Tarrant County, Texas,
798 F.2d 736, 744–45 (5th Cir. 1986).       Although Clark’s arm-of-the-state
analysis took place in the context of determining Eleventh Amendment
immunity, we have applied its test when determining whether an entity was
subject to FCA liability. See U.S. ex rel. Adrian v. Regents of Univ. of Calif.,
363 F.3d 398, 401 (5th Cir. 2004).
      In deciding whether a suit against an entity is in reality a suit
      against the state, several factors must be determined: (1)
      whether the state statutes and caselaw characterize the agency
      as an arm of the state; (2) the source of funds for the entity; (3)
      the degree of local autonomy the entity enjoys; (4) whether the
      entity is concerned primarily with local, as opposed to statewide
      problems; (5) whether the entity has authority to sue and be sued
      in its own name; and (6) whether the entity has the right to hold
      and use property.

Khan, 2005 WL 1994301, at *2; see also Richardson v. S. Univ., 118 F.3d 450,
452 (5th Cir. 1997). We address each factor in turn.


A. Texas Statutes and Caselaw

                                        8
    Case: 12-20795     Document: 00512429000      Page: 9   Date Filed: 11/04/2013


                                   No. 12-20795

      A survey of Texas statutes and caselaw reveals that the first Clark
factor weighs in favor of finding UTHSCH an arm of the state. The state
constitution provides for the establishment of the University of Texas
System.    Tex. Const. art. VII, § 10 (“The Legislature shall as soon as
practicable establish, organize and provide for the maintenance, support and
direction of a University of the first class, to be located by a vote of the people
of this State, and styled ‘The University of Texas’, for the promotion of
literature, and the arts and sciences.”). The Center is part of the University
of Texas System.     Tex. Educ. Code § 65.02(a) (“The University of Texas
System is composed of the following institutions and entities: . . . (9) The
University of Texas Health Science Center at Houston.”).          Texas statutes
consider “a [public] university system or an institution of higher education” to
be a “state agency.” Tex. Gov’t Code § 572.002(10)(B).
      Texas courts also treat UTHSCH to be a state agency.            In Klein v.
Hernandez, 315 S.W.3d 1, 8 (Tex. 2010), the Texas Supreme Court held that a
resident was an “employee of a state agency” in finding him entitled to
immunity. See also id. at 6 (referencing legislative materials referring to
UTHSCH as “a state agency-owned school”).         In Illoh v. Carroll, No. 14-09-
01001-CV, 2012 WL 1570991, at *1 (Tex. App.—Houston [14th Dist.] May 3,
2012, no pet. h.), a Texas Court of Appeals referred to the “governmental-
entity University of Texas Health Science Center at Houston” when
evaluating whether the Texas Tort Claims Act’s limited waiver of immunity
applied to a UTHSCH doctor. In Cheatham, the court referred to “UTHSCH,
a governmental unit” when reviewing claims against “two UTHSCH-
employed doctors.” Univ. of Tex. Health Sci. Ctr. at Hous. v. Cheatham, 357
S.W.3d 747, 748 (Tex. App.—Houston [14th Dist.] 2011, review denied). The
opinion goes on to refer to the defendants as “government-employed doctor[s]”


                                        9
   Case: 12-20795    Document: 00512429000      Page: 10   Date Filed: 11/04/2013


                                 No. 12-20795

and reviews statutory provisions governing the conduct of “government
employee[s].” Id. at 749.
      King argues that these cases “never actually characterize UTHSCH as
an ‘arm of the state,’” that Klein never directly implicated UTHSCH or
sovereign immunity, and that other cases referring to the Center as a
“governmental unit” are meaningless because that term is much broader
than what is required for finding an entity to be an “arm of the state.” We
acknowledge that there does not appear to be any case that evaluates all six
Clark factors and finds the Center to be an arm of the state for either FCA or
sovereign immunity purposes.     But we do not read Clark’s first factor as
requiring an entity claiming sovereign immunity to first identify on-point
court decisions evaluating the issue and holding it to be entitled to sovereign
immunity. If that were the case, we would not need a six-factor test.
      We find the aforementioned Texas authorities to weigh in favor of
UTHSCH being an arm of the state.


B. Sources of Funding
      According to King, “[f]rom 2005 until 2009, state funding and federal
funding have contributed an approximately equal percentage of the revenue
collected by UTH[S]CH” and “[s]tate funding has only contributed between
23% and 26.5% of the gross revenue for UTHSCH from 2005 to 2009.”
Despite King’s attempts to downplay state funding’s importance, the
magnitudes are substantial. The district court noted that in 2009, UTHSCH
took in more than $26 million from student tuition and fees, received about
$170 million in direct state appropriations, and received over $25 million
from other state agencies.




                                      10
   Case: 12-20795    Document: 00512429000      Page: 11   Date Filed: 11/04/2013


                                 No. 12-20795

      King asserts that despite the significant amounts of state funding,
UTHSCH would be unable to reach into segregated state funds in order to
pay a judgment here because the Center’s federal and state funding are
“strictly and carefully segregated,” with state funding only available to
support state-funded missions. We disagree.
      “[T]he most significant factor in assessing an entity’s status is whether
a judgment against it will be paid with state funds.” Richardson, 118 F.3d at
455 (quoting McDonald v. Bd. of Miss. Levee Comm’rs, 832 F.2d 901, 907 (5th
Cir. 1987)). But this does not mean we can find sovereign immunity or an
arm of the state only “where payment would be directly out of the state
treasury.” United Carolina Bank v. Bd. of Regents of Stephen F. Austin State
Univ., 665 F.2d 553, 560 (5th Cir. Unit A 1982). “The crucial question . . . is
whether use of . . . unappropriated funds to pay a damage award . . . would
interfere with the fiscal autonomy and political sovereignty of Texas.” Id. at
560–61.
      The district court in United Carolina found that the Eleventh
Amendment did not bar suit against Stephen F. Austin State University
(“SFA”) in part because “SFA could itself pay such an award because it had
substantial unappropriated, separately held, locally generated funds” and, as
a result, “payment of an award c[ould] be made without resort to general
revenues of the state or legislative appropriation.”       Id. at 559–60.    We
reversed, holding that “[t]he key is not the ability to identify segregated
funds, but the larger concept of jurisdiction over state sovereignty which the
eleventh amendment proscribes.” Id. at 560. We found that the SFA’s local
funds were “either held in the Treasury or restricted as to use,” were “subject
to audit and budget planning,” and as a result “any award from those funds
would directly interfere with the state’s fiscal autonomy.” Id. at 561.


                                       11
   Case: 12-20795     Document: 00512429000     Page: 12   Date Filed: 11/04/2013


                                 No. 12-20795

      Similarly, in Jagnandan v. Giles, we held that tuition refunds would
implicate the state treasury. 538 F.2d 1166 (5th Cir. 1976). The tuition “fees
were factored into the preparation of the annual budget for [Mississippi State
University] and were relied upon by the state legislature in determining the
maximum amount of expenditures allowed.” Id. at 1176. The refunds would
have “add[ed] an expenditure not figured in the budget.” Id. We explained:
      The Eleventh Amendment was fashioned to protect against
      federal judgments requiring payment of money that would
      interfere with the state’s fiscal autonomy and thus its political
      sovereignty. Retroactive monetary relief . . . would have just that
      effect. Mississippi has devised a complex statutory design which
      governs the state’s schools of higher education and their control
      by the Board of Trustees. The Board is required to submit
      budgetary proposals for legislative acceptance. To require refund
      payments from the Board for overpayment of tuition fees would
      be the kind of tampering the Eleventh Amendment sought to
      avoid.

Id. (footnote omitted).
      We hold that Texas provides substantial funding to the Center and that
allowing for civil recovery would interfere with the state’s fiscal autonomy,
even if payment is not made directly from the state treasury. Clark’s second
factor supports finding UTHSCH to be an arm of the state.


C. Degree of Local Autonomy and Right to Hold and Use Property
      A board of regents, appointed by the governor with the advice and
consent of the senate, governs the University of Texas System, and
“govern[s], operate[s], support[s], and maintain[s] each of the component
institutions.” Tex. Educ. Code §§ 65.11, 65.31. All UTHSCH contracts must
be in accordance with board rules or specially approved by the board of
regents. Id. § 65.35. As a state agency, the Center is required to follow


                                      12
    Case: 12-20795     Document: 00512429000     Page: 13   Date Filed: 11/04/2013


                                  No. 12-20795

specific accounting and financial reporting requirements. Tex. Gov’t Code §
2101.011(b).
         With respect to UTHSCH’s right to hold and use property, “[t]he board
of regents of the University of Texas System has the sole and exclusive
management and control of the lands set aside and appropriated to, or
acquired by, The University of Texas System.” Tex. Educ. Code § 65.39. “The
board has the power of eminent domain to acquire for the use of the
university system any land that may be necessary and proper for carrying
out its purposes. . . . The taking of the property is declared to be for the use
of the state.” Id. § 65.33
         We find that Clark’s third and sixth factors support finding UTHSCH
to be an arm of the state.


D. Local vs. Statewide Concerns
         The University of Texas System, of which UTHSCH is a part, has
locations throughout the state of Texas. We do not accept King’s contention
that the Center is primarily concerned with local issues because it “does not
provide statewide services or have a statewide presence” since “[a]ll of its
facilities are in Houston.” Education and research are statewide concerns.
See e.g., Tex. Educ. Code § 61.002 (Texas Higher Education Board created to
“benefit the citizens of the state in terms of the realization of the benefits of
an educated populace”); Richardson, 118 F.3d at 455–56 & n.15 (“That
Southern is only one of many state-funded schools does not deprive it of
Eleventh Amendment immunity.”).
         Clark’s fourth factor supports finding UTHSCH to be an arm of the
state.




                                       13
    Case: 12-20795       Document: 00512429000         Page: 14     Date Filed: 11/04/2013


                                       No. 12-20795

E. Authority to Sue and Be Sued in its Own Name
       Texas law provides for the University of Texas System’s ability to sue
on behalf of a component institution “to recover a delinquent loan, account, or
debt owed.” Tex. Educ. Code § 65.42. Texas statutory law does not appear to
authorize the Center to bring suit or allow plaintiffs to sue UTHSCH directly.
       Nonetheless, King identifies several cases in which UTHSCH either
sued or was sued, and in none of them did it object to proceeding in its own
name or insist that the University of Texas System be substituted in its
stead. See Duncan v. Univ. of Tex. Health Sci. Ctr. at Hous., 469 F. App’x 364
(5th Cir. 2012); Watson v. Univ. of Tex. Health Sci. Ctr. at Hous., No. H-09-
0881, 2009 WL 1476469 (S.D. Tex. May 27, 2009); Butcher v. Univ. of Tex.
Health Sci. Ctr. at Hous., No. H-08-cv-0244, 2008 WL 4935723 (S.D. Tex.
Nov. 18, 2008); Cheatham, 357 S.W.3d 747. The number of cases in which
the Center is a named party leads us to conclude that, for arm-of-the-state
purposes, it has the authority to sue and be sued in its own name. 3
       Clark’s fifth factor weighs against finding UTHSCH to be an arm of the
state. But because five out of the six Clark factors weigh in favor of finding
the Center to be one, we conclude that UTHSCH is an arm of the state and
that Stevens applies. UTHSCH is not a “person” under the FCA, and is not
subject to qui tam liability. We affirm the district court’s dismissal of King’s
qui tam claim under Rule 12(b)(6) for failure to state a claim under the FCA.



3We note that these cases focusing on an entity’s ability to sue or be sued are usually
within the context of determining whether a state has waived immunity. As noted above,
the arm-of-the-state test was developed for sovereign immunity purposes. A recent Fourth
Circuit decision case applied a four-factor test that excludes “the authority to sue and be
sued in its own name” from the analysis. U.S. ex rel. Oberg v. Ky. Higher Educ. Student
Loan Corp., 681 F.3d 575, 580 (4th Cir. 2012); see also S.C. Dep’t of Disabilities & Special
Needs v. Hoover Universal, Inc., 535 F.3d 300, 303 (4th Cir. 2008). Because our result
would be the same under either our current test or the Fourth Circuit’s, there is no need to
change our test.
                                             14
   Case: 12-20795     Document: 00512429000     Page: 15   Date Filed: 11/04/2013


                                 No. 12-20795

III. Retaliation Claim
      King sues UTHSCH for retaliation pursuant to the FCA’s anti-
retaliation provision, 31 U.S.C. § 3730(h).      In relevant part, § 3730(h)
provides that:
      Any employee, contractor, or agent shall be entitled to all relief
      necessary to make that employee, contractor, or agent whole, if
      that employee, contractor, or agent is discharged, demoted,
      suspended, threatened, harassed, or in any other manner
      discriminated against in the terms and conditions of employment
      because of lawful acts done by the employee, contractor, agent or
      associated others in furtherance of an action under this section or
      other efforts to stop 1 or more violations of this subchapter.


Congress amended this section in 2009. The previous version stated that
“[a]ny employee who is discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against in the terms and
conditions of employment by his or her employer . . . shall be entitled to all
relief necessary to make the employee whole.” (Emphasis added.)
      In Elizondo, a district court applied Stevens’s holding that states and
state agencies are not within the FCA’s definition of “any person” to the older
version of § 3730(h)’s use of the phrase “his or her employer” and held that
states are not subject to suit under § 3730(h). Elizondo v. Univ. of Tex. at
San Antonio, No. CIVASA-04-CA-1025-XR, 2005 WL 823353, at *4–5 (W.D.
Tex. Apr. 7, 2005).      But the amendment to § 3730(h) prevents us from
applying Elizondo’s analysis here. See Bell v. Dean, No. 2:09-CV-1082-WKW,
2010 WL 1856086, at *4 (M.D. Ala. May 4, 2010) (“Elizondo and the other
cases are no longer on all fours . . . given the 2009 amendment removing the
word ‘employer’ from the statute”).    Unlike the Court in Stevens, we are
unable to resolve all of our case’s issues on statutory grounds, and must



                                      15
    Case: 12-20795       Document: 00512429000         Page: 16     Date Filed: 11/04/2013


                                       No. 12-20795

review the Center’s argument that it is entitled to sovereign immunity from
FCA anti-retaliation claims.
       “Congress may abrogate the States’ constitutionally secured immunity
from suit in federal court only by making its intention unmistakably clear in
the language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 228 (1989)
(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). In
Foulds, we held that the Eleventh Amendment barred a qui tam action
seeking damages against Texas Tech University and Texas Tech University
Health Sciences Center. U.S. ex rel. Foulds v. Tex. Tech Univ., 171 F.3d 279,
294–95 (5th Cir. 1999); see also Nelson v. Univ. of Tex. at Dall., 535 F.3d 318,
320 (5th Cir. 2008) (FMLA action against University of Texas at Dallas
“subject to an Eleventh Amendment immunity defense”).
       King does not argue that § 3730 intends to strip states of their
sovereign immunity, or any other reason to find that Congress abrogated
sovereign immunity here. Rather, she applies her arguments against finding
UTHSCH to be an arm of the state in the statutory context to the sovereign
immunity inquiry as well. We apply our finding that UTHSCH is an arm of
the state and hold that sovereign immunity bars King’s claim for monetary
relief under the FCA’s anti-retaliation provision.
       We affirm the district court’s dismissal of King’s retaliation claim
under Rule 12(b)(1) for lack of subject-matter jurisdiction.


                                    CONCLUSION
       We AFFIRM the district court’s dismissal of King’s suit. 4

4 King challenges the district court’s dismissal of her complaint without first granting her
leave to amend. Because we affirm the district court’s dismissal based on our holding that
UTHSCH is an arm of the state and not because of any pleading deficiency under Rule
12(b)(6) or Rule 9(b), amendment would be futile. We find no error in the district court’s
decision not to grant leave to amend before dismissing King’s case.
                                             16
