United States District Court, Northern District of Illinois, Eastern Division
November 1, 2000
UNITED STATES OF AMERICA EX REL. JANET CHANDLER, PH.D., PLAINTIFF,
THE HEKTOEN INSTITUTE FOR MEDICAL RESEARCH AND COOK COUNTY, ILLINOIS, DEFENDANTS.
The opinion of the court was delivered by: Gettleman, District Judge.
OPINION AND ORDER
Plaintiff/relator, Janet Chandler, has brought this qui tam
action on behalf of the United States under the False Claims Act
("FCA"), 31 U.S.C. § 3729 et seq. The claims and the facts of
the case are described in the court's previous opinion, U.S. ex
rel. Chandler v. Hektoen Institute, 35 F. Supp.2d 1078
("Chandler I"), and will not be repeated here.
In Chandler I, the court dismissed defendant Cook County
Hospital, and denied the remaining defendants' motions to
dismiss, finding that, (1) Cook County was a "person" for
purposes of the FCA, and that the FCA's treble damages provision
is compensatory rather than punitive. Id., at 1086. Cook County
has filed a motion to reconsider those conclusions in light of
the recent decision in Vermont Agency of Nat. Resources v.
United States ex rel. Stevens, 529 U.S. 1858, 120 S.Ct. 1858,
146 L.Ed.2d 836 (2000), issued after this court's ruling
Chandler I, in which the Supreme Court held that a state is not
a "person" subject to qui tam liability under the FCA, and that
the treble damages provisions of the
FCA are (contrary to this court's holding in Chandler I)
punitive rather than compensatory. Id., 120 S.Ct. at 1869; see
also Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617 (7th Cir.
2000). The court ordered briefing by the parties, and allowed the
United States to file an amicus curiae brief in support of
Although this court finds no reason to alter its conclusion
that the County is a "person" for purposes of the FCA, it is
quite clear that under Stevens the County is immune from the
imposition of punitive damages, which are mandatory if liability
is found under the FCA. Plaintiff and the United States argue
that, assuming the court reaches this conclusion, the court would
be authorized to award lesser damages in order to allow this case
to be continued against the County, suggesting that the court
could award double damages (which have been held to be remedial
rather than punitive; see United States v. Bornstein,
423 U.S. 303, 315, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976)). The court agrees
with the County, however, that the court has no authority to
rewrite the FCA in such a manner. As noted by the Stevens
Court, the FCA allows a reduction in the mandatory treble damages
only in certain instances, none of which are present in the
instant case. See Stevens, 120 S.Ct. at 1869, n. 16.
The arguments advanced by plaintiff and the United States in
the instant case were recently presented to and rejected by the
United States District Court for the Eastern District of
Pennsylvania. In a well-reasoned decision, which this court
adopts, Judge O'Neill, relying on Stevens and noting this
court's earlier decision in Chandler I, held that the treble
damages mandated by the FCA are punitive and may not be imposed
on a county. United States ex. rel. Dunleavy v. County of
Delaware, 2000 WL 1522854, 2000 U.S. Dist. LEXIS 14980 (E.D.Pa.,
Oct. 12, 2000). This court cannot improve on Judge O'Neill's
reasoning, and therefore concludes that the County is immune from
prosecution under the FCA because it is immune from any award or
claim for punitive damages.
Accordingly, Cook County's motion to reconsider the ruling of
February 8, 1999, is granted, and this action is dismissed with
prejudice against the County. This matter is set for a report on
status regarding the remaining defendant on November 2, 2000, at
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