Wisconsin Bell v. U.S., ex rel. Todd Heath
Oral argument transcript · No. 23-1127 · October Term 2024 · argued November 4, 2024 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Allyson N. Ho, Dallas, Texas, for the petitioner
- Tejinder Singh, Washington, D.C., for the respondent
- Vivek Suri, Assistant to the Solicitor General, amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument this morning in Case 23-1127, Wisconsin Bell versus United States ex rel. Todd Heath. Ms. Ho. ORAL ARGUMENT OF ALLYSON N. HO ON BEHALF OF THE PETITIONER
Allyson N. Ho: Mr. Chief Justice, and may it please the Court: The False Claims Act, which casts its shadow over every aspect of the administrative state, has always been trained on guarding the public fisc. The FCA protects government funds by defining a claim as a request for money the government provides or that's presented to a government agent. As a result of political branch choices, E-rate reimbursement requests check neither box. The program could have been funded with public money and administered by a government agency, but the political branches chose private funding and a private administrator to prevent E-rate money from being used to mask budget shortfalls and to avoid the Official 1 Government Corporation Control Act. The consequence of those choices is that E-rate reimbursement requests aren't FCA claims. First, the government doesn't provide any money in the E-rate program. Text, context, structure, and history all confirm that the government provides money for FCA purposes only if it supplies money from its own funds, putting the public fisc at risk. That never happened here. The government doesn't provide money by making one private party pay another private party, and the government doesn't provide money by collecting debts owed to a private party and in which the government has no financial stake. Second, the program's private administrator, the Administrative Company, isn't a government agent. By design, it lacks power to bind the government, which in turn lacks control over what matters here: grants of E-rate reimbursement requests. In fact, we know the company can't be a government agent because, if it were, it would violate the Government Corporation Control Act. Choices have consequences, and the Official 1 choices made by the political branches to insulate the E-rate program from the public fisc foreclose applying the FCA. I welcome the Court's questions.
Justice Thomas: Ms. Ho, could you focus just briefly on the $100 million that the government says it contributes or provides. That -- much of that is collected under a debt collection provision that authorizes the government to collect its -- a debt owed to it. That seems somewhat at odds with your argument that it's not the government's money. It -- how could it be collected under that Act if it is not owed to the government? And if -- if it is owed to the government, then why isn't it the government's money after that?
Allyson N. Ho: Yes, Justice Thomas, and let me answer both parts of your question. Let me begin by addressing the debt settlement and restitution. Those funds are no different than the E-rate contributions themselves. They are owed to the Administrative Company. The United States just collects and returns those funds to their private owner. A -- a -- a good analogy Official 1 is like child support. Like a parent provides child support even when the United States withholds from the parent's income and sends to the other parent, the private telecom carriers provide E-rate funds even when the United States collects their delinquent debts, just like when a private litigant uses a sheriff to go after a property to pay judgment. Now let -- Justice Thomas, let me -- let -- address directly your question about the Debt Collection Improvement Act. And those debts don't belong to the government, even under the Debt Collection Improvement Act, for three reasons. Number one, that's a different statutory scheme with different language. That's the Blanca case from the Tenth Circuit that we cite in our brief. The FCA limits a claim to money that the United States provides, and the Debt Collection Improvement Act defines "claim" more expansively without regard to its effect on the public fisc. And, number two, relatedly, the Debt Collection Improvement Act applies to funds that the United States is authorized by statute to Official 1 collect for the benefit of any person. That is Section 3701(b)(1)(D). So money belongs to the person for whose benefit the government collects it. The government just holds it in trusts. And that's in our brief on page 32. And my friend, the Solicitor General, admits on page 17 of the Solicitor General's brief that they are obligated, the government is obligated, to transmit funds back to the Administrative Company.
Chief Justice Roberts: Okay -- the --
Justice Jackson: Can I ask you a question why -- oh. Sorry.
Chief Justice Roberts: I was just going to -- the government, though, treats this, these funds, as appropriated funds, right? They -- they're -- as I understand it, they're called backdoor appropriations?
Allyson N. Ho: You're correct, Mr. Chief Justice, that OMB and the President's budget have -- have labeled the E-rate funds as -- I think they're -- I think the -- the bureaucratic term is "permanent indefinite appropriations," but even -- even OMB, in using that term, admitted that -- I think -- I think the language Official 1 used was that the line between the private sector and government can be murky and that it was including those funds in the budget out of a desire to be -- to be comprehensive. So, ultimately, it is this Court's responsibility to interpret this statute and determine what the nature of the funds are. So bookkeeping labels aren't dispositive of that question, Mr. Chief Justice.
Justice Jackson: But I guess I'm wondering why the government isn't collecting the money here for a public purpose for the funding of this program. You suggest that the money belongs to the person for whom the government collects the funds, and I thought the funds were being collected to operate this government program.
Allyson N. Ho: So, Justice Jackson, I take your question to be focused on, you know, is it -- is it money that the government collects -- which, of course, we know the government isn't actually collecting the money here. The private carriers are paying their money --
Justice Jackson: Right. I was just Official 1 responding --
Allyson N. Ho: -- to another private person.
Justice Jackson: Yeah, I was just -- I was just trying to understand your response to Justice Thomas, who said --
Allyson N. Ho: Yes.
Justice Jackson: -- we have a hundred million dollars that the government is collecting, admittedly, as a result of sell -- settlements and debt collection, in the context of this program, but, ultimately, the reason why the money is being collected is because the government has ordered telecom companies to fund this government program. So the ultimate beneficiary, I would think, is the public, right?
Allyson N. Ho: So we know, Your Honor, from the text of the False Claims Act and its definition of "claim" that just having a government purpose isn't enough and that the -- the precise language -- and this is 3729(b)(2)(A). It defines a claim, and it says, "if the money or property is to be spent or used on the government's behalf or to advance a government program or interest," which is what Official 1 you're asking me about, "and if the United States provides or has provided any portion of the money or property." So it's not enough to --
Justice Jackson: So I guess I don't understand your argument about "provides." Can you help me? Because it seems to me that you're saying that because the government here has ordered these telecom companies to pay directly into the fund, it is not "provides," but if the government had ordered the telecom companies to pay them a fee, for example, and then directed that into the fund, it would be "provides." And I guess I don't understand why that distinction should make a difference.
Allyson N. Ho: Yes. And the -- the distinction is critical, and the distinction is that under the scenario as Congress and the political branches designed it, the public fisc is never put at risk. The money goes from the private carriers --
Justice Jackson: But I guess I'm thinking never --
Allyson N. Ho: -- to the private fund.
Justice Jackson: -- the -- in -- Official 1 even -- in either scenario, the public fisc is not really put at risk. I mean, you -- you have this pot of money that's the public fisc, and in my second scenario, the government is exacting a fee from the telecom companies, and while it might be put into the public fisc for two seconds, the point is they're exacting the fee to pay for this fund. What difference does it make if they're doing it that way versus just telling the telecom companies you put it into the fund directly?
Allyson N. Ho: I -- I think that the key -- the key difference for False Claims Act purposes is that in the first scenario, even -- even if the money is only in the public fisc for a limited amount of time, that is still endangering the public fisc. It is going into the public fisc, and the government is providing the funds out of the public -- of the public fisc. And -- and the political branches, Congress and the FCC, in choosing this rather unique setup, this design, did that quite intentionally -- Official
Justice Jackson: Didn't they do it --
Allyson N. Ho: -- to protect this --
Justice Jackson: -- intentionally to avoid the cost, the administrative cost, of it -- the government being the one -- I mean, what's so peculiar about your argument to me is that I would think good government would actually be trying to hold down costs. We have this program we've created, and it seems far more efficient to have the telecom companies just put the money in directly than it does to say: Give the money to us, and then we will in cost -- you know, incur the costs of rerouting it out to the fund.
Allyson N. Ho: And --
Justice Jackson: I don't understand why that's a problematic thing from your perspective.
Allyson N. Ho: Oh, we don't think it's a -- it's problematic. We just think those choices, which, as -- as you -- as you lay out, may have been for very sound reasons, those choices have consequences, and the consequence of that choice to insulate the public fisc and perhaps to gain some efficiency in doing it this way -- Official
Justice Jackson: Means that it can --
Justice Barrett: But, Ms. Ho --
Justice Jackson: -- be defrauded from your -- your perspective under the FCA? The FCA doesn't apply in that situation?
Allyson N. Ho: We believe that the FCA does not apply, but there are -- there are plenty of tools in the toolbox to -- to safeguard the administrative fund from -- from fraud.
Justice Barrett: Ms. Ho, can I ask you a question? It seems like your argument rests on the premise that only one person can provide, and I'm not really sure why that's true. I was thinking of an example of -- think back to the days when proctors used to give out test booklets and pencils. So let's say that I'm working as a proctor. It would be perfectly natural for me to say to the students: I'm going to provide each of you with a pencil and a booklet. Now I didn't go out and purchase those with my own money. The school presumably provided them to me and then I provided them to the students. I mean, I think one person doesn't Official 1 have to provide. I think we could say that the United States provided funds, for example, that it -- this hundred million dollars that it got through debt collection, et cetera, and then also say that the carriers provided money to the funds through their fees or that the carriers provided -- funds to the United States, which was a conduit. I just don't understand. I mean, are you assuming that "provides" has to be exclusive, that there's one ultimate provider?
Allyson N. Ho: In this case, yes, Your Honor, because we look at the two parties that are involved, the -- the -- who are -- who are providing it. And the statute says the government has to provide the money. So my disagreement with my friends on the other side with their reading of "provides" is how that is provided. So our position is you can't provide funds by making some -- making someone else provide the funds, and you don't provide funds when someone else acts as a conduit --
Justice Kagan: Well, why not?
Justice Barrett: But they -- Official
Allyson N. Ho: -- for those funds.
Justice Kagan: I mean, I had the same sort of question that Justice Barrett did, a different example. If I have a sick friend and I arrange for Uber to bring that sick friend chicken soup, I mean, in some ways, it's the deliveryman who provides the soup, but I provided the soup because I paid for it and I told the deliveryman to go deliver it. And so, here, you might have two people that could in some sense be said to furnish or supply or provide the soup.
Allyson N. Ho: Justice Kagan, I would say in your -- in your hypothetical that you are providing the funds, you're providing the funds that then is used to -- to transmit the soup or -- or the ride.
Justice Kagan: Well, I think my friend --
Allyson N. Ho: And that -- and that's what --
Justice Kagan: -- would thank me for giving her the soup, not the funds, you know? I mean -- I mean, I think my friend would Official 1 understand that the Uber guy was a kind of conduit and it went through -- but -- but -- but -- but I ordered the soup. And, here, the mandate is coming from the federal government in the same way.
Allyson N. Ho: And -- and, Justice Kagan, I think your hypothetical gets it exactly right when you say that your friend would thank -- would thank you. The thank you note would go to you, Justice Kagan, right, because you provided the funds that then in turn led --
Justice Kagan: And so too I think --
Allyson N. Ho: -- however many -- down the -- down the way.
Justice Kagan: -- the school might say: Thank you to Congress and the FCC for setting up this program that enables us to, you know, get these services in our schools, because everybody understands that the carriers aren't doing from the goodness of their hearts. Everybody understands that the carriers are doing it because the U.S. government, the Congress, the FCC, and then -- and then the particular administrative entity that's been set up pursuant to the statutory scheme, you know, Official 1 that's -- the -- you know, that's where the directive is coming from. That's who's responsible for schools getting what they're getting.
Allyson N. Ho: Yes. And Congress made the choice to set up the system to -- to deliver those -- those resources, those important resources, and it made choices. It chose to require the private telecom carriers to pay. And the FCC made the choice to have a private administrator administer the system. And in that system that Congress designed, one consequence of that decision is that the public funds, which is the -- the cornerstone here of the False Claims Act, right, threat to the public fisc is never implicated, and so one consequence that flows from those choices is the fall -- you -- you cannot have a False Claims Act. But, as I was -- as I was talking with Justice Jackson about, that does not mean that the fund is left without protections. There are a toolbox of tools, everything from fees and fines to disbarment from the program.
Justice Barrett: But, Ms. Ho, it Official 1 doesn't say that the threat -- I mean, clearly, it -- one purpose is to protect the public fisc.
Allyson N. Ho: Yes.
Justice Barrett: But, I mean, also protecting federal programs could be a purpose. I mean, so you can't rely just, I think, on that one purpose to narrow it. And it -- it also seems at least for the post-2009 claims that there's some tension between the addition saying that it doesn't matter if the money -- if the United States has title to the money or property, but defining it as public funds implies that is so.
Allyson N. Ho: Let me take both parts of your question, Justice Barrett. Let me start with your -- the -- the -- the last part, the -- the title clause. And I think the -- the title clause clarifies that the False Claims Act applies even if the United States no longer has title, present tense, to the money or property when the request is made. So a request for money that's been provided to -- by the United States to a grantee is still a claim even though the grantee and not Official 1 the United States holds title to the money when the request is made. And the -- the revised addition of the "provides for" clause strengthens that interpretation because Congress also amended that to say "provides or has provided." So it's really a timing issue. And I would think, if Congress -- if Congress were going to sever the link between the False Claims Act and protecting the public fisc that has been its historic focus, it would not have done that -- it would not have taken that huge step through such an oblique way as to revising the title clause, which really is more about timing and doesn't sever the link between the public fisc and the FCA. And, Justice Barrett, let me take on your second question -- your second aspect of -- of your question about the government -- the purpose and the interest here, and that gets back to what I was talking with Justice Jackson about. And the text of the False Claims Act really answers that because, in the revised -- in the revisions, the amendments that were made Official 1 in 2009, Congress specified: If the money or property is to be spent or used on the government's behalf or to advance a government program or interest and if the United States provides or has provided any portion of the money. So, if -- if Congress wanted to sever this historic link between the False Claims Act and protecting the public fisc, the easiest way for it to do that would have been just to eliminate the "provides" clause altogether. And Congress didn't -- didn't do that. It adopted a very narrow amendment --
Justice Kavanaugh: To --
Allyson N. Ho: -- that was focused on the timing issue, not severing the -- the False Claims Act from the --
Justice Kavanaugh: On -- on Justice Thomas's question about the hundred million dollars --
Allyson N. Ho: Mm-hmm.
Justice Kavanaugh: -- I want to focus on that as well for a minute -- what exactly makes something part of the public fisc, to use your terms, or makes something government funds, Official 1 to use your term? What are the precise indicia?
Allyson N. Ho: Sure. I would say public money, money that is owed to the United States. So that would take in taxes, certainly, but also fees, say, that people pay the post office --
Justice Kavanaugh: Mm-hmm.
Allyson N. Ho: -- or customs that go into the public fisc. So I think the key -- the key -- the key indicia is that it's simply money that the government owns.
Justice Kavanaugh: From taxes or fees or fines? No?
Allyson N. Ho: Yes. If the money -- if it's -- if it's -- if it's money that's going from private pockets into the public fisc, into the government, the government owns that money and the government can do with that money what it wills. And by contrast --
Justice Kavanaugh: When you say "owns the money," what are --
Allyson N. Ho: Owns the money.
Justice Kavanaugh: -- what are the precise things we look at to determine whether the government "owns the money"? Official
Allyson N. Ho: Sure. I think -- I think you would -- I think one way -- maybe one helpful way to look at it within --
Justice Kavanaugh: And, again, I'm focused on the hundred million here.
Allyson N. Ho: Yes. Maybe one helpful way to look at it within the False Claims Act context that our case arises in is it is -- it is money that -- that, if anything were to happen to that money, right, that that -- that -- that the -- the -- the incidence of that loss would be borne by the government. And, in our case, whether you're talking about the contributions or you're talking about the debt, the settlement, the restitution, all of which is owed to the Administrative Company, all of which is being paid by the private carriers, and the government's role, as this Court said in the Cohn case, right, money or property that is just in the government's hands for temporary possession before it's being returned to its rightful owner is not public money or public funds or endangering the public fisc --
Justice Kavanaugh: But couldn't you Official 1 say that --
Allyson N. Ho: -- for purposes of the False Claims Act.
Justice Kavanaugh: -- about all public funds? You know, taxes come in and then they go out to pay for government programs; in other words, the -- that's what I'm trying to distinguish. Most government money comes from taxes, some from fees --
Allyson N. Ho: Yes.
Justice Kavanaugh: -- some from leases, et cetera.
Allyson N. Ho: Yes.
Justice Kavanaugh: But it's coming in and going out.
Allyson N. Ho: And it is -- and it is -- it is the government, right, it is coming into the public fisc, right, and the government is then sending it out. And that is not -- that's the opposite -- that is what Congress did not want here. Congress wanted money coming into a private --
Justice Kavanaugh: Right. On your broader argument, I get that. I'm still trying to get the hundred million. But I -- I'm -- Official 1 I --
Allyson N. Ho: Yes, I -- I think -- I think -- I think the way to think about that money is that is money just -- it's no different than the contributions, Justice Kavanaugh.
Justice Kavanaugh: Okay.
Allyson N. Ho: It is owed to the Administrative Company, and the government is simply getting it and taking it back to its private owner. The government doesn't keep any of that money.
Chief Justice Roberts: What -- what --
Allyson N. Ho: So, if something were to happen to that money, all of the incidence of loss would fall on the Administrative Company, which, by the way, cannot have -- does not have recourse to the Treasury for funds if it falls short. It has to go involve commercially --
Chief Justice Roberts: What -- what if we --
Allyson N. Ho: Yes, Mr. Chief Justice.
Chief Justice Roberts: What if we don't agree with your treatment of the hundred million and think -- agree with the government's Official 1 view of the hundred million? Is there any way that you -- any argument you have that that doesn't taint the 4 billion or whatever the number is? In other words --
Allyson N. Ho: Yep.
Chief Justice Roberts: -- if part of it is the whatever -- you know, hundred million over whatever the denominator is, does that mean you lose?
Allyson N. Ho: So the plain text of the False Claims Act refers to "any portion of the money." I do think that would have damages implications, right, because the remedial provision -- and I think this is actually another structural cue why we're right about all of the money, the contributions and the money, that the -- that comes back to the company as a result of restitutions, debts, and settlements, is the remedial provision says a civil penalty of not less than 5,000, not more than 10,000, plus three times the amount of damages which the government sustains. So, whether you're talking about the contributions coming in or you're talking about the contributions that weren't paid and that are Official 1 coming back into the fund, the government did -- was -- did not sustain loss either -- either way under any -- any of those -- those funds, and --
Justice Kagan: Just to follow up the Chief Justice's question, you're not suggesting, are you, that there's some kind of tracing requirement, that, you know, you have to find the dollar that came into the Treasury and see what happened to that exact dollar, because that wouldn't make much sense, would it? So you're not suggesting that?
Allyson N. Ho: No, I'm not suggesting that. There -- that -- that sort of -- you might have a question like that along the damages prong, right, because you're looking at the damages that the government sustains. That's the Custer Battles case, right, where the tracing was an issue in that.
Justice Kagan: Yeah.
Allyson N. Ho: But, no, no.
Justice Gorsuch: Can you explain that to --
Justice Kagan: And then --
Justice Gorsuch: Sorry. Please go ahead. Official
Justice Kagan: So one -- if I just could go back to what Justice Kavanaugh was asking you because, as I took Justice Kavanaugh's question, it was really like every time you tell me it comes in and it goes out, again, putting the rest of the money aside, but that a hundred million, it's just coming in and going out in the typical way money always comes in and goes out. And you said the loss doesn't fall on the government. But, in some sense, that's always true because the money is appropriated for some other thing, some other activity, and the loss falls on that other activity or purpose. So I guess I'm still searching for what your answer is to Justice Kavanaugh's question.
Allyson N. Ho: Sure. And I -- I -- I think the -- the key to the debt settlements and restitutions is that they -- they are no different than the contributions that the carriers pay directly to the Administrative Company and that the Administrative Company then disburses -- may I finish?
Chief Justice Roberts: Yeah -- yeah. Official 1 Sure.
Allyson N. Ho: Thank you. It is simply -- it is money that belongs to the Administrative Company, owed to the Administrative Company, and that is brought back to, and that the -- the only role of the government with respect to the -- the debts and the settlements and the restitution is to hold that in trust for its rightful owner. No different than when the government collects restitution in a criminal case, it holds that money in trust for the victim --
Justice Kagan: Thank you.
Allyson N. Ho: -- who is the owner. Thank you.
Chief Justice Roberts: Thank -- thank you, counsel. Justice Thomas, anything further? Justice Sotomayor?
Justice Sotomayor: Your -- earlier answer suggests to me that you think you -- that this case won't end this matter unless we rule on the government -- on the Respondent's first ground, that this is a government program in total, correct? Because what you're -- I think Official 1 what you're saying is we -- if our ruling relies simply on the hundred million, that your next case is going to be: Okay, I'll accept that, but I'm going to fight about whatever the recovery is under the False Claims Act. That's what you just said to me.
Allyson N. Ho: I -- I -- I -- I -- I think -- I -- I -- what I was -- what it is -- it is trying to say is the text of the False Claims Act reads that so long as any portion of the money in government -- is government funds. Our -- our position is that the government doesn't provide a cent of the money at -- at all.
Justice Sotomayor: If we say they provide at least a hundred million, is your argument going to be that recovery is limited to that hundred million or that recovery, assuming you go under the False Claims Act, that recovery is limited to a hundred million, or are you going to take this position you're now taking, that the government hasn't suffered any harm so that nothing would come to the government?
Allyson N. Ho: Well, our -- our -- our position is that the government hasn't suffered Official 1 any harm. If you -- if you disagree and you hold that the government has provided any portion of that money, then, Justice Sotomayor, you're right, that then does -- that becomes a damages issue because the --
Justice Sotomayor: So this case doesn't end. Then you're going to argue that their damages have to be limited to a hundred million? What are you going to argue?
Allyson N. Ho: Well, I think we would -- you know, our -- position is that there is no fraud here at all. We would go -- we would go back and -- and have -- have a trial. Our position is that there's -- there's no fraud here, period.
Justice Sotomayor: Assume there's a finding of fraud, that you should have paid more -- you should have given them a greater discount than you did. So assume you -- you lose the fraud parts. Are we back to a case where you're going to claim the damages are limited because?
Allyson N. Ho: Justice Sotomayor, I think, if we're in a situation where we have a trial on the claim, that would depend on what -- Official
Justice Sotomayor: Counsel, just ask my --
Allyson N. Ho: -- what -- what the -- what the jury --
Justice Sotomayor: -- answer my question.
Allyson N. Ho: It would be -- it would be what -- whatever the jury finds in terms of damages, the limit on that would be the amount of damages the government sustains, and that -- that would depend on what the jury were -- were to find in that case.
Justice Sotomayor: And you're saying there would be no damages because the -- the -- the fund got the hundred million from the government.
Allyson N. Ho: Our -- our position is no fraud, no damages.
Justice Sotomayor: Okay.
Allyson N. Ho: Thank you, Your Honor.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch?
Justice Gorsuch: Ms. Ho, I just want to follow up on that just so I understand. So assume you lose on the hundred Official 1 million. It would be sent back.
Allyson N. Ho: Yes.
Justice Gorsuch: And there would be a trial.
Allyson N. Ho: Yes.
Justice Gorsuch: And let's assume you lose on the -- on the -- on the merits of the trial. And I know those are unpleasant assumptions, but work with me a minute. I think you would have open to you two arguments. One, that the hundred million dollars is not traceable to the losses in this case because the funds didn't follow through. I assume you'd make that argument, is that correct?
Allyson N. Ho: Yes, Justice.
Justice Gorsuch: And then I'm -- I'm -- I'm detecting in your colloquy with Justice Sotomayor that you might make an additional argument that damages would be limited to a hundred million dollars in any event, is that correct?
Allyson N. Ho: Yes.
Justice Gorsuch: Okay. Thank you.
Allyson N. Ho: Yes. Thank you, Justice Official 1 Gorsuch.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: In your brief, you mentioned constitutional avoidance --
Allyson N. Ho: Mm-hmm.
Justice Kavanaugh: -- and I'm, I guess, having trouble connecting that argument to this case in the sense of how it would be any more or less unconstitutional if -- the overall scheme -- if we disagreed with you here. So can you connect that up?
Allyson N. Ho: Sure. So our -- our position -- and, as -- as -- as you say, it's a constitutional avoidance argument that looks at the justification for a relator, right? And so the relator has standing under this Court's decision in Stevens, right, because, in a sense, it -- it is the -- the delegate of the government's injury, right, its proprietary injury, right, its pocketbook injury. So, in a case like ours, where the government hasn't sustained any loss, right, then that leaves the relator only with the Official 1 government's sovereign interest to go after violators of the law. So we -- we agree that our -- our argument in terms of constitutional avoidance doesn't -- doesn't completely solve the problem, but we would urge the Court not to go further down the path and make the -- the situation worse by allowing a situation where a relator is only operating on the basis of the government's sovereign interest, which is the Article II problem --
Justice Kavanaugh: Thank you.
Allyson N. Ho: -- that we raised. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Ms. Ho, I want to follow up on the questions that Justice Sotomayor and Justice Gorsuch asked you, and let me just see -- I just want to make sure. I don't -- I don't think I quite have your answer. So let's assume you lose on the hundred million dollars, and let's assume again that you lose at trial, and then it's a question of calculating the damages sustained. Official 1 I can't really tell how damages sustained are measured here in this situation where you have someone other than the government itself collecting or disbursing the funds. I saw one Fourth Circuit case that addressed that and that was it. So my question is: I -- I don't think it would be a hundred million dollars, right, because that's not the allegation of -- maybe I'm wrong. I didn't think Wisconsin Bell was accused of shortchanging by overcharging by a hundred million dollars. That's just --
Allyson N. Ho: No.
Justice Barrett: -- not the government --
Allyson N. Ho: No.
Justice Barrett: Okay. So let -- I'm just picking a number. Let's say it's $20,000. If that money -- if the government itself had been directly defrauded of that money and you had treble damages, it would be $60,000. I think what -- what -- if I -- if -- I have the same question that they do. My question is: If you get to that point and you're trying to calculate damages sustained to Official 1 the government, are you going to say: Yeah, it's 60,000 once you treble it, just like it would be if they were dealing directly with the government? Or would you say: No, we have to calculate the marginal cost to the government in some kind of way? Or you might say: It's zeroed out. Like, the government didn't actually sustain any damage here. And so then it doesn't mean that the relator gets nothing because then there are other -- penalties and fines that are available under the FCA. That's my question.
Allyson N. Ho: Justice Barrett, let me take a step back and say I think that the discussions that we've been having highlight the mismatch here and show why the government couldn't possibly have provided the funds at issue --
Justice Barrett: Okay. But assume you lose that.
Allyson N. Ho: -- including -- including the --
Justice Barrett: Assume you lose that.
Allyson N. Ho: If we lose that, then what Official 1 that means -- all that means is that we have a claim, right? The relator has a claim. And it would certainly be the relator's job, assuming this gets to trial, to prove up damages and the jury's job then to decide what is that.
Justice Barrett: Right, right, right.
Allyson N. Ho: So I think the mismatch --
Justice Barrett: But is the relevant number that the relator, in your view, would be aiming at the $20,000 that I'm hypothesizing, or would it be some marginal cost to the government, or, as a matter of law, for a jury instruction, would you be saying, you know, it's zero because the government didn't actually suffer any loss? Even though the government provided the hundred million dollars, the damages sustained to the government were none?
Allyson N. Ho: I -- I think the way I would answer that, Justice Barrett, is to -- to look to the text of the remedial provision, which refers to damages that the government sustains. And so it would be the relator's job at trial to prove that amount, whatever that is. And I -- and we would -- we would retain our full panoply of arguments why the Official 1 relator isn't entitled to a dime for that or for other reasons.
Justice Barrett: Thank you, Ms. Ho.
Allyson N. Ho: Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So it seems to me that your "provides" argument rests on the premise that the FCA is about putting the public fisc at risk.
Allyson N. Ho: Mm-hmm.
Justice Jackson: You've said this many times and that there is, you said, a historical link between the public fisc and the FCA. And I guess I'm looking at the history and I don't really see it that way, so I'd like for you to respond. You know, as I read the history of the FCA, the purpose is broader than just trying to protect the public fix -- fisc. In fact, when Congress passed in 1986 the amendments where "claim" -- the "claim" definition --
Allyson N. Ho: Mm-hmm.
Justice Jackson: -- that we're talking about here was put into the statute, it Official 1 also had a report that talked about what it was doing, and that GAO report documented widespread fraud in government programs and focused on "the non-monetary effects" of the fraud and Congress's concern that it wasn't just about the money. It talked about things like the loss of confidence in government programs. It pointed to incidents in which the beneficiaries of the program did not get the benefits that Congress wanted them to get. So it was clearly beyond the fiscal impact. And so what I guess I'm wondering is: Doesn't that sort of undermine your argument that all we need to care about here is looking at this through the lens of whether or not the government has actual monetary skin in the game in this way?
Allyson N. Ho: Yeah. Respectfully, no, Justice Jackson, and -- and I think that's the case for three reasons. And let me start with this Court's precedents on the False Claims Act, and this Court has said again and again that the False Claims Act is not an all-purpose fraud statute, even fraud against the government. It is not an Official 1 all-purpose fraud statute against the government. I think the reason for that is that at every juncture from the 1980 -- '86 amendments to the 2009 amendments, Congress has made adjustments to the False Claims Act, but it has never --
Justice Jackson: Yeah. No, I'm not talking -- I -- I -- I --
Allyson N. Ho: -- it has never severed the rule from that.
Justice Jackson: No, I understand. But I guess what I'm trying to perhaps get your feedback on is if we think that the False Claims Act was doing more than just caring about whether the government lost a dollar as a result of this fraud but, in fact, was also about whether the fraud prevented the program from operating. The government has lots of different ways in which it might fund its programs. Some of them might be direct funding from the government. Some of them might be orders by the government to have other people fund the program. Official 1 But, at the end of the day, what the government wants is for that program to operate effectively. It wants it to work. And fraud, says the government in its reports when it put out the FCA, is undermining the effectiveness of our program. So you want us to make a distinction about whether or not the FCA applies that based on the -- that is based on the mechanism of funding, but that just assumes that the mechanism of funding mattered to the government. And I'm telling you that from the history, what -- the -- the government was broader than the mechanism of funding as the reason why the FCA should apply.
Allyson N. Ho: And I think, Justice Jackson, the best -- our -- our -- our surest instrument for registering the concern and purpose of Congress is the text of the statute that it enacted. And it --
Justice Jackson: No, I understand. I understand. But you make --
Allyson N. Ho: -- and it referred -- and it referred to money --
Justice Jackson: -- a lot of Official 1 representations about what the -- I'm only going this route because your whole argument is the government wanted in the FCA to have this protection of the government funds.
Allyson N. Ho: Yes.
Justice Jackson: So let me just ask you one final question. What -- what do you do with the fact that the House report from 1986 that discusses the statutory --
Allyson N. Ho: Mm-hmm.
Justice Jackson: -- definition of "claim" says, "'A claim upon any government agency or instrumentality, quasi-governmental corporation, or non-appropriated fund activity is a claim 'against'" -- "upon the United States under the Act.'" It seems very clear that Congress wanted to get at things beyond just actual government agencies in this way, that they were also sweeping in government corporations, et cetera, as necessary to make sure that its programs operated.
Allyson N. Ho: Yes, Justice Jackson. I think the key word in -- in all of the examples you just made is -- is "government," right? Official 1 Government agency, government --
Justice Jackson: So is this a quasi-govern -- I thought this was a quasi-governmental corporation, the USAC.
Allyson N. Ho: No.
Justice Jackson: It's not?
Allyson N. Ho: No. The -- the -- the -- the -- the Administrative Company --
Justice Jackson: Yeah.
Allyson N. Ho: -- is a private company. It is private -- corporation incorporated in -- in -- in Delaware, it -- and -- and -- and we -- we know that it's not a government instrumentality or agent because, if it were, it would run afoul of the Government Corporation Control Act because --
Justice Jackson: Thank you.
Allyson N. Ho: -- the FCC sought permission, and it -- it wasn't provided.
Chief Justice Roberts: Thank you, counsel.
Allyson N. Ho: Thank you.
Chief Justice Roberts: Mr. Singh. 25 Official 1 ORAL ARGUMENT OF TEJINDER SINGH ON BEHALF OF THE RESPONDENT
Tejinder Singh: Mr. Chief Justice, and may it please the Court: When Wisconsin Bell requests E-rate funds, the government provides the money. The administrator pays on the government's behalf using money the government collects and controls to advance a federal program that the government created. FCC mandates, which the administrator must follow, specify who must be paid and how much they must be paid. So, when the administrator paid Wisconsin Bell, that was the government providing money through its agent. Indeed, many government programs, including most notably Medicare, use private claims administrators to provide billions of dollars to beneficiaries of government programs. As Justice Kagan's soup hypothetical, Justice Barrett's proctor hypothetical illustrate, when an entity like the government provides money through agents, we credit the principal in that situation. So, when Wisconsin Bell receives money, claims money, from the E-rate program, we Official 1 credit the government with providing it. FCC mandates also determine carriers' obligations to contribute to the Universal Service Fund. Those mandates are how the government provided funds to this program, and it doesn't matter that the government routed the funds directly from the carriers to the Universal Service Fund instead of requiring an unnecessary detour through federal Treasury accounts because the False Claims Act's applicability doesn't turn on bookkeeping conventions, which is also a point Ms. Ho made, I think, quite well. The point is not exactly how did the money move through a bureaucracy, was it routed efficiently or less efficiently. The point is who is really making the money move, and it is the government. The government is the only relevant decision-maker at all stages of creating, funding, and then controlling the distributions from this program. The administrator merely does what the government wants. Under the plain meaning of the word "provide," the government therefore provides the Official 1 money Wisconsin Bell claims. That's true of all the money and especially the hundred million that was discussed more -- earlier. I welcome the Court's questions.
Justice Thomas: Mr. Singh, if this had been an appropriated fund and the administrator had been an federal agency, this would be, of course, a very straightforward case. We'd know exactly what the government's financial stake was. But this is private money from private parties to another private party, and it's very difficult to see what the government's financial stake is. And I think it's -- it -- you might ultimately conclude, or we might, that it is enough to be federal funds. But it doesn't look like federal funds. It looks like private funds. So, in this -- in this instance, would you explain exactly what the government's financial stake is here? It hasn't appropriated any monies, it hasn't given any grants, and it hasn't lost anything. No matter what happens here, the government's not out of pocket.
Tejinder Singh: Sure. So let me -- let me Official 1 start with part of the premise I'm not sure I agree with. As Ms. Ho admitted in the first part of the argument, this is treated for budget purposes as a permanent indefinite appropriation. The appropriation is located in the Telecommunications Act, so it's not a year-to-year appropriation where a specific amount of money is designated, but it is treated for budget purposes as appropriated funds. And so, to the extent that that's significant, I think it's satisfied here. Such permanent indefinite appropriations are pretty commonplace throughout the federal budget, and so that piece of the premise I'm not sure I agree with. But I take the point that there are aspects in which the funding structure of this program is unusual, that there is less government touching the money than there might be for other federal programs. And, as I said in my introduction, I just don't think that that can be dispositive as to the question whether the federal government is providing the money. On the specific question of what has the government lost, I think, if you look at Official 1 this the way that I do, which is to say the government could have ingested this money into Treasury accounts and then moved it to the administrator and out to beneficiaries -- in fact, we know it could have because it did so in 2018. It relocated all of the funds into Treasury accounts. Nothing changed about how the program works. It is still the same -- quintessentially the exact same program except for the flows of funds. And so I would say what the government loses is all that money coming in because that is money that it -- the government solely controls to achieve its governmental purposes. And so, when that money is not available because fraud depletes the Universal Service Fund, there is less money on hand to pay the beneficiaries that the government is trying to provide affordable telecommunication services to. And that is really no different, I think, from any other government spending program.
Chief Justice Roberts: Well -- I'm sorry, why don't you finish your answer.
Tejinder Singh: No, I think that that's what I've got. Official
Chief Justice Roberts: It -- it is a little bit different, and you mentioned this in the beginning. It -- the GAO calls this back -- backdoor appropriations, which is not -- you know, that's a little bit of a pejorative term, I mean, and the reason I think is because you do get very large amount of money without going through the normal appropriations process. And it seems to me that that's a significant question, maybe at too high a level of generality, but it -- it -- if you can take and spend for whatever purposes you would like any amount of money so long as you require a -- a -- a -- a private entity to pay it into a fund and then you exercise whatever authority you want to dispose of it in a particular way, that seems to me a significant exception to the normal appropriations process, and I wonder if that's a concern at all.
Tejinder Singh: I don't think it's a concern in this instance. Nobody has made the argument that anytime you have a permanent indefinite appropriation, the False Claims Act just doesn't apply or the program is invalid. There is a -- Official
Chief Justice Roberts: Well --
Tejinder Singh: As the Court may be aware, there are other cases pending about the validity of the Universal Service Fund structure, precisely under doctrines like non-delegation, that go to some of the concerns you're raising. But I don't think those are False Claims Act concerns. What the False Claims Act is concerned with is protecting the integrity of government programs, as Justice Jackson pointed out, and ensuring that pro -- program funds move to their intended beneficiaries, which are identified by the government, and the amounts they're supposed to get come from the government as well. And so I think, if you have concerns about how the program is structured, those are really concerns for another case, not this one, because they don't bear on whether the Universal Service Administrative Company is an agent of the United States, nor whether the funds are provided by the government. And I would just say one more thing which may help with the concern you're drawing, is that the Universal Service Administrative Official 1 Company, the administrator here, is not like just any private entity. You know, it's not as if private carriers are being ordered to pay funds to just another private company that's out there. This company has one job. Its only job is to administer this government program or this set of Universal Service government programs. It has no real other function, and I think that really does distinguish this situation from things the other side talks about, like minimum wage or potentially other examples where the government is causing money to move between private parties and we don't normally think of it as providing money.
Chief Justice Roberts: If -- if we're persuaded by your argument on the hundred million dollars, it -- it seems to me a -- a difficult question whether or not that sort of -- whatever a non-pejorative word for "taints" is, in other words, whether that determines the characteristic of -- of the other umpteen billion dollars. I mean, if -- if it were 10 million, would that be enough to characterize the -- the entire rest of the fund, or -- or $1? Or are you limited with respect Official 1 to, whether it's damages or whatever, to the percent of money that you actually collect?
Tejinder Singh: The text of the statute says that if the government provides any portion of the money requested or demanded, then it's covered. Now, as I say, I think the government provides it all. Wisconsin Bell can't get a penny that the government does not authorize it to get. And so that's our frontline argument, of course.
Chief Justice Roberts: So -- so just to stop there --
Tejinder Singh: Yes.
Chief Justice Roberts: -- your frontline argument is, if it's a dollar, the entire billion-dollar account is government funds?
Tejinder Singh: Well -- well, to be clear, our frontline argument is all of the money is government funds. Now --
Chief Justice Roberts: Okay.
Tejinder Singh: -- coming down to your question, which is about what if only a subset of the money is provided by the government, I think that under the "any portion" language, all Official 1 of the claims are still false claims. I do acknowledge that there will be damages questions down the line, and to be candid, that is part of why we're saying all of the money is government money. We don't want to talk about those questions down the line. We want it to be clear because this litigation has been pending for a very long time, and we think resolving it expeditiously is to everybody's benefit. So part of the reason we're arguing for all of the money is looking around the corner at the damages questions. But, to be clear, in this case, the Petitioner has not made an argument. They have not even attempted to make the tracing argument that Justice Gorsuch was alluding to. They could have said: Well, if it's only the hundred million, then that's not enough to make us liable. They have said nothing of the sort. And so I don't think that question is before you. I think you can acknowledge, as both parties have, that the "any portion" language basically gets us home on liability if you're Official 1 inclined to go that way, but I really do want to talk through all of the money.
Justice Gorsuch: Mr. Singh, on -- on the hundred million, just to wrap that up, so there is no traceability argument, so that takes us to the question of damages. Would a ruling on the hundred million point in your favor cause you any heartburn when it comes to damages and, if so, what would it be?
Tejinder Singh: Yes. Well, Your Honor, I think it will cause the government more heartburn than it causes me specifically, but it will cause a lot of heartburn. Here's why. The hundred million -- if -- if a hundred million were treated as the upper limit on damages and --
Justice Gorsuch: Would it be, or -- or --
Tejinder Singh: Yeah.
Justice Gorsuch: -- or would that be relevant at all under the damages provision?
Tejinder Singh: The issue has not been briefed in this case or argued. The law of damages is -- Official
Justice Gorsuch: I suspect you've done a lot of thinking about that.
Tejinder Singh: I have done a bit. This Court's precedents are quite favorable to us in saying that the amount of damages should be liberally construed to make the government completely whole --
Justice Gorsuch: Okay.
Tejinder Singh: -- and words to that effect. But --
Justice Gorsuch: So you'd take the position that the hundred million is not the upper limit?
Tejinder Singh: We certainly would. But it's -- I -- I acknowledge that it would be a fight over the -- a legal fight over this that's unnecessary, I think.
Justice Gorsuch: Okay. Okay. I -- I got that.
Tejinder Singh: Yeah.
Justice Gorsuch: So your -- is your first preference then it provides all the money?
Tejinder Singh: Certainly.
Justice Gorsuch: Okay. And if we rule on that ground, there's no need to get into Official 1 the agency stuff either, I would think.
Tejinder Singh: Sure.
Justice Gorsuch: And -- and, there, there's some complications too because Congress added the word "agent" in 2009, and some of your claims predate that, right?
Tejinder Singh: Yeah. Let me refund that a moment. So I do think you're right that presenting a claim to an agent, whether the government provided the money or not, that's actionable only after the 2009 amendments.
Justice Gorsuch: Right. Okay.
Tejinder Singh: But I actually think that if you agree with us on the substance of the agency point that the Administrative Company is the government's agent, it sheds a lot of light on who's providing the money.
Justice Gorsuch: I -- I -- I get that. But -- but -- but your frontline argument is it provides all. And that would be your preference because -- over the hundred million, for the obvious reasons we've discussed, it would be your preference over the agency line of reasoning because of 2009?
Tejinder Singh: Yeah. Official
Justice Gorsuch: Okay.
Tejinder Singh: But I don't want this to sound just like my naked litigation preference as it is also my --
Justice Gorsuch: No, I -- I -- I want to know your naked litigation preferences. (Laughter.)
Tejinder Singh: And you have them.
Justice Gorsuch: Okay.
Tejinder Singh: You have them.
Justice Gorsuch: That's all I need to know. Thank you.
Justice Barrett: So, Mr. --
Justice Kavanaugh: What you've got on the --
Justice Sotomayor: You were just cut off.
Tejinder Singh: Oh, yeah. So --
Justice Sotomayor: No, I --
Justice Gorsuch: Well, no.
Tejinder Singh: -- so it's not only what I want. It's also really about what this statute is meant to accomplish. You know, I think there is a point in which I -- I somewhat agree with the other side, Official 1 which is when Ms. Ho says that the -- the hundred million is really not terribly different from all of the contributions, there's a sense in which I agree with that because, although that money is the money that the government collects, banks, and then transfers, and so you have to just ignore what you see with your own eyes to ignore that the government is providing that money, all of the money is dedicated to the same purpose. It's all moving for the same reason.
Justice Kavanaugh: That -- that's a huge difference, I think, in practice. I mean, all taxes come into a government account and then go out. And with the hundred million, you can really analogize to how the -- almost the entire federal appropriations process works, right? So that's why the word "provides" there -- I think the other side has a little bit of trouble on the hundred million, but then, when you get to the rest of it, it seems like you have a -- a bit of a problem because the word "provides" does not to me at least ordinarily fit when the government orders one Official 1 private party to provide money to another private party, which is, when we get outside the hundred million, what I think is going on here.
Justice Barrett: Can --
Justice Kavanaugh: But correct me if I'm wrong or respond otherwise.
Tejinder Singh: Yeah, let me chew on this a little bit with you. So I think the -- when you think about the providing of money, I think that there are two ways you can think about it at least. One is, who is providing money to the Universal Service Fund, right? We say the government provides it because it created the fund and mandates the money go into it. They say the carriers provided it. Okay. And I get that there's a debate, and as you acknowledge, we can fight over that. But you can think about it slightly differently. The statute doesn't say, you know, who provides money to the fund. It says: Who provides the money requested or demanded? And so you also, I think, should ask the question: Who is providing the money to Wisconsin Bell and Official 1 claimants like Wisconsin Bell? And when you think about it that way, there is no plausible argument, I think, that the carriers are providing that money. They have relinquished all control of the funds by the time it gets to the Universal Service Fund. At that point, your only choices are: It's either the administrator or it's the government, right? And the administrator --
Justice Kavanaugh: Well, is the administrator a government --
Tejinder Singh: -- is only doing what --
Justice Kavanaugh: -- is the administrator a government official?
Tejinder Singh: No, but it is --
Justice Kavanaugh: No, and that's --
Tejinder Singh: -- an agent.
Justice Kavanaugh: -- that -- that's critical here, right?
Tejinder Singh: Well --
Justice Kavanaugh: That's -- on -- on the -- again, on the bigger argument, that's critical?
Tejinder Singh: -- no, because, for the reasons that Justice Kagan gave with her soup Official 1 hypothetical and Justice Barrett with her proctor hypothetical, when you have someone who's just acting as an agent, we normally attribute the providing of the thing to the principal. And, in fact, this is an example the other side uses in their brief. They say, when Grandma sends $20 through the post office, we credit Grandma, not the post office. In this situation, if you ask who's providing the money to Wisconsin Bell, well, the administrator is transferring the money, but it's doing so because the government requires it to. It can't transfer a dollar more or a dollar less.
Justice Gorsuch: But, Mr. Singh, just to give an example maybe in aid of Justice Kavanaugh's line of thinking -- we've had some colorful ones. This is less colorful, I admit -- but a court order ordering a judgment, plaintiff, you get money from defendant. Does the court provide that money or does the defendant provide that money and in -- if -- if so, what makes that example different?
Tejinder Singh: Yeah. So I don't think we Official 1 would say in ordinary usage that the court provides that money. I want to make two points kind of clear. First, I think that we read the word "provides" in context, right, and so the whole context is the government provides any portion of the money or property requested or demanded, and then there's that stuff about government programs, government interests. And I think, when you look at it in context, what we're asking is: Here, did the government fund this government program or not?
Justice Gorsuch: Well --
Tejinder Singh: And I think it did.
Justice Gorsuch: -- court orders have certainly funded the plaintiff's coffers very nicely, and --
Tejinder Singh: Yes, but it's not a government program.
Justice Gorsuch: -- and it did through government coercion in the same way that we have here, right? It's -- it's, you know, on pains of going to jail if you don't do it. So what -- what's the difference?
Tejinder Singh: So I think what the Official 1 difference is if you look at just exactly what I was talking to Justice Kavanaugh about. In that situation, certainly, the defendant who has to pay the plaintiff is not the government's agent, right? And so you normally -- as I was saying, when a principal says, agent, give the money to someone, you attribute the giving to the principal.
Justice Gorsuch: But putting aside the agency argument --
Tejinder Singh: I like the agency argument. (Laughter.)
Justice Gorsuch: I know you do.
Tejinder Singh: Okay.
Justice Gorsuch: Do you have anything beyond the agency argument?
Tejinder Singh: That is my --
Justice Gorsuch: Okay.
Tejinder Singh: -- that is the clearest, most crystallized response, but I think more broadly --
Justice Kavanaugh: Well, isn't the --
Justice Barrett: Mr. Singh --
Justice Kavanaugh: -- entire civil Official 1 litigation system -- under what you're describing as government program --
Tejinder Singh: I --
Justice Kavanaugh: -- the entire civil litigation system is a "government program"?
Tejinder Singh: So, in context, I don't think that's true, Your Honor. I -- I don't think the government has been construed to mean the court system under the False Claims Act. That's kind of a separate question. I would also add --
Justice Kavanaugh: But just on your theory of "provides" --
Tejinder Singh: Yeah. I would also add, though --
Justice Kavanaugh: Wait. Can you stop there?
Tejinder Singh: Yeah, yeah. Sorry.
Justice Kavanaugh: On your theory of "provides," why wouldn't it be? Put aside, you know, the government hasn't contended or --
Tejinder Singh: So, under our theory of "provides," as I'm saying, the -- the court system in that -- Official
Justice Kavanaugh: Which you've connected to the word "program" as opposed to "fisc." That's a key move in your argument, I think, government program rather than government fisc. The word "provides" goes to government program. Under your theory of that, why isn't the civil litigation system a government program that -- in which the government is providing the money, in Justice Gorsuch's example, to the plaintiff?
Tejinder Singh: Yeah. So, as I was saying, I don't think the word "government," with a capital G in the statute, has been construed to mean the court system. I would also say that, like, to the extent you're concerned about this --
Justice Kavanaugh: That doesn't answer my question, but you can keep going.
Justice Jackson: Isn't the answer, Mr. Singh, about the duties that are running in the civil litigation? In other words, the duties, the duty to pay comes from the defendant, the private person, right --
Tejinder Singh: Yes. Official
Justice Jackson: -- based on the -- the claim that the plaintiff has. It's not -- the duty is not coming from the court in the same way.
Tejinder Singh: Well, that's right. I mean, the court will enforce the duty or -- yeah.
Justice Jackson: The court is just enforcing --
Tejinder Singh: Yes.
Justice Jackson: -- in that situation. That's why the court is not like --
Tejinder Singh: And that also is, I think, my point about how, when a principal orders an agent to pay, that's different from regulating, where -- when the government -- it's not -- you do not have to accept the proposition and we do not want you to accept the proposition that anytime the -- government causes money to flow from A to B, it has provided money within the meaning of the False Claims Act. We think that this statute is limited to the situation where the government is funding its programs. It's not going to encompass all regulation. And I would say that to the extent Official 1 you have any concerns about this, empirically, the fact that there aren't cases all the time where every plaintiff who's recovered in civil litigation is bringing False Claims Act cases because someone defrauded them is good evidence that the statute --
Justice Kavanaugh: Well, until we rule --
Justice Kagan: If I --
Justice Kavanaugh: -- for you here. (Laughter.)
Justice Kavanaugh: And then -- then we might. I mean, that's --
Justice Barrett: Mr. Singh --
Justice Kavanaugh: -- the concern. Sorry to interrupt.
Justice Barrett: No, no, I interrupted you. Go ahead.
Justice Kavanaugh: I -- I'm done.
Justice Barrett: You're done? What -- regardless of -- let -- let's assume you win, and regardless of whether you win on the hundred million argument or your larger argument, what are the damages sustained?
Tejinder Singh: In our view, the damages Official 1 sustained are all of the money that went into the E-rate program because the government has caused that money to be available for the beneficiaries, and so, when Wisconsin Bell takes it unlawfully, they have made a false claim for money.
Justice Barrett: So it's not just the money that Wisconsin Bell took unlawfully?
Tejinder Singh: So there will be a debate about whether the entire amount claimed --
Justice Barrett: Assuming that it took it unlawfully, of course.
Tejinder Singh: Yeah, yeah.
Justice Barrett: Yeah.
Tejinder Singh: There will be a debate about that between the parties. We think that the right way to make the government whole is to take the entire claim amount. They may argue that it's the delta. So if, you know, they violate the lower -- lowest-corresponding price rule by charging -- sorry. Can I finish, Your Honor?
Chief Justice Roberts: Sure.
Tejinder Singh: Yeah. If they violate it by charging 50 percent more than they should Official 1 have, then there is some delta of overcharge, which results in a delta of subsidy, and maybe they'll argue that that amount is the damages. That has not been hashed out yet in the lower courts. Our position will be -- you can guess, our position will be the broader damages position. Their position will be the narrowest one. And that will be something to be figured out on remand.
Chief Justice Roberts: Thank you, counsel. Justice Thomas?
Justice Thomas: Just a matter of curiosity. What would be the difference between the authorities of the agent as opposed to a case if -- where there was a sub-agency that administered the fund?
Tejinder Singh: I'm sorry. I want to make sure that I'm --
Justice Thomas: Normally, you would have an agency in the government administering a government program.
Tejinder Singh: Mm-hmm.
Justice Thomas: The -- here, you're Official 1 saying that the private entity is an agent. So what is the difference in their authority and their liability and -- and their conduct in -- in this E-rate program?
Tejinder Singh: So, if I hear the question correctly, and please correct me if I don't, the idea is how is it different -- how can USAC, the Administrative Company, be held accountable differently from if a government sub-agency were administering the program?
Justice Thomas: That's close enough.
Tejinder Singh: Okay. So the way that USAC's appointment works, they have a memorandum of understanding with the government. They are appointed to be the permanent administrator by virtue of FCC regulations. They receive -- they have regular oversight meetings with the FCC. They get letters and phone calls telling them what to do. And, of course, they have a bunch of regulations telling them what to do as well and the memoranda of understanding. If they breach the terms of that, the FCC can correct them. If they refuse to be corrected, the sanctions can go as high as them losing their job, which would be kind of Official 1 similar, I think, to what would happen to federal employees. And I think, overall, that's a really strong point in our favor because, if this entire function could be in-housed and look essentially the same, I think that tells you that they are acting as government agents.
Justice Thomas: The difference is that the program, that the administrator here has no liability or no relationship with the -- the -- with Congress, for example, and it's not treated as a government agency and is not subject to the government rules. It's just, you're saying, a -- and -- a memorandum of understanding. It's just an agreement.
Tejinder Singh: Well, I think, if Congress wanted to say don't use this entity, it could say that. I think, if Congress -- if the FCC wanted to terminate the relationship, it can do so. And so I think that there may be slightly greater freedom in the current structure because maybe the FCC couldn't get rid of a sub-agency. It would depend how it was created. But I think it's very, very similar. I -- I -- I don't see a lot of practical differences between how this program actually Official 1 works and how it would work if it were entirely housed within the government. I think it was put outside just to be efficient, and I don't think government should be punished for shying away from big government and doing the more efficient thing.
Justice Thomas: Well, for those of us who have run agencies, it would be a lot easier to control the -- an -- an agent under an MOU than to have to deal with an agency that is also subject to oversight.
Tejinder Singh: Your Honor, that may be true. I don't know. In this case, I think what we understand is that the control structure allows the FCC with fairly comprehensive control over the administrator's actions, which is one reason why we think it's an agent.
Chief Justice Roberts: Justice Alito?
Justice Alito: Let me see if I correctly understand some of what you have just told us. The question here -- the only question before us is whether the reimbursement requests are claims under the False Claims Act. You could win on any of three grounds. The narrowest of those would concern the 100 Official 1 million. But you've argued that we should really decide the case under one of the other broader grounds because that might have an effect on a damages question that has not been briefed and we don't know whether the case will ever get to the issue of damages. Is -- is that a correct summary of some of what you've said?
Tejinder Singh: That is part of why I want to do it, but, as I pointed out, I think that there is a legal doctrinal reason to decide the case on slightly broader grounds. One of the reasons -- so it's true, if you say that we win on the hundred million, you will resolve the technical circuit split over the question presented, which is whether E-rate funds are covered by the False Claims Act. But there is a little bit of disuniformity in the legal rules that courts have used to get there. The Fifth Circuit said the money has to come from the Treasury. The Seventh Circuit said no. And so there would be a little bit of disuniformity still remaining. I think it's worthwhile, if easy, to resolve that by reaching the broader ground that the Official 1 government provided all the money. And I think it will -- will also provide more clarity for other cases that aren't just about the E-rate program if folks understand that when the government funds its programs, even if it does so through this direct efficient mechanism instead of an inefficient mechanism, the False Claims Act still applies. So, yes, I -- I do think you can resolve it on the narrowest ground. I don't know that that's the most satisfactory resolution.
Justice Alito: Well, what if you were to -- what if we thought that you should win under the hundred million argument but lose under the other two? Then I assume you would prefer to just take your narrow victory and go home, right?
Tejinder Singh: Oh, sure. Then you should say the hundred million, we decide nothing else. And I'll work with the courts on remand. No problem. (Laughter.)
Justice Alito: Thanks a lot.
Chief Justice Roberts: Justice Official 1 Sotomayor?
Justice Sotomayor: That was quite fascinating. I'm still laughing over it, counsel. I -- I -- I do want to go back to these two theories. I -- I actually thought there were three theories that you had proposed. The first was that the entire program is a government program. The government is supplying the money because the government's setting the rate at which the contractors have to pay. They're telling the Universal Service Fund how to spend that money. And they're creating the FCC program that qualifies carriers to receive the money. So they're controlling every aspect of the distribution, correct?
Tejinder Singh: Yes. That's our argument for sure.
Justice Sotomayor: I think they're doing this more specifically than many of the appropriations mechanisms that we reviewed recently -- think one of my colleagues wrote about this -- in which we have appropriations to agencies with no more guidance than says it's a continuing X amount and you spend it on these Official 1 things and that's it. We have more specificity than that here, correct?
Tejinder Singh: Quite correct. The FCC's rules are very detailed.
Justice Sotomayor: Okay. And we have some appropriations that -- that are based on how much is collected by the -- that agency, and they're entitled to spend that, and if they don't spend that, they can save it for the future, correct?
Tejinder Singh: Yeah. And this is one such program, yes.
Justice Sotomayor: And that's your point, that this is very similar to those appropriation programs?
Tejinder Singh: Yes. Our point, Your Honor, is that the E-rate program and the Universal Service programs are fundamentally no different from basically every government spending program.
Justice Sotomayor: All right. I missed an answer you were giving, I think, to Justice Barrett when she was asking you about the measure of damages. Official 1 I -- I thought that your claim was that under this program, they should have paid us -- or they should have not charged us a certain amount; they should have charged us a lot less. But you seemed to be suggesting in your answer to Justice Barrett that your claim is something more than the amount that you were charged.
Tejinder Singh: Yeah. So --
Justice Sotomayor: Am I understanding your answer to her? And if that's true, what's that something more? What has the U.S. lost besides the fact that you should have been paid -- that you should have paid less money, I guess?
Tejinder Singh: Yeah. So I think that if the outcome of the damages analysis is that the -- you know, only the extra amount of subsidy that was given to Wisconsin Bell and its customers is the measure of damages, that would be a reasonable outcome to the damages discussion. But all I was say -- telling Justice Barrett is, you know, that has not been hashed out yet. We're not at the damages stage. Official 1 And so -- yeah.
Justice Sotomayor: I understand that. I'm going back to, what else are you claiming you're entitled to besides that? That's the part that I don't understand.
Tejinder Singh: So, in certain contexts, when claims are made that should not have been paid, courts have determined that the entire amount claimed constitutes damages. This may not be such a case. The other side may win, that, no, we were allowed to make a claim, you just think we made it too big, and so the damages are less. My point is only that because that discussion hasn't yet happened, I don't want to prejudice what my colleagues may talk about on remand. I just wanted to give you the gamut of the arguments that may be presented. But, certainly, one of the arguments that I think could carry the day in this case down the line is that what we're talking -- the loss is the delta between what was paid and what should have been paid.
Justice Sotomayor: You still haven't answered my question. What is the amount of the Official 1 claim, the total claim, that's your alternative argument?
Tejinder Singh: So it would be the amount of each subsidy claim made in whole, and so --
Justice Sotomayor: Even though they paid a part of it? So, if you asked for a $50,000 subsidy and they only gave you 20, you're still entitled to the 50, or are you claiming something more?
Tejinder Singh: Right. So the question for damages would be, should this claim have been paid at all? And if the answer is no, then the entire amount of the claim is going to be damages. If the answer is yes, it should have been paid but for a lesser amount, then the amount of damages is going to be the delta. And so my only point is that that debate has not yet happened, but that's what's teed up.
Justice Sotomayor: All right. Thank you.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: Could I go back to the conversation you were having with Justice Gorsuch when he gave you the other example and Official 1 you said to him, no, that would not be a -- a normal use of the word "provide" and you said it's all a matter of context. And then you said the context here is that the administrator is acting as an agent. And is -- if we don't feel like getting into the question of exactly whether the administrator is an agent, the sort of back 10 pages of everybody's briefs where we have to figure out, you know, does an agent have to have the power to bind the government or all that, if we just take that off the table and -- and said: Okay, now we want a different kind of rule that separates the case in front of us from the case that Justice Gorsuch raised, do you have another rule for that?
Tejinder Singh: Yeah. So I think that when I say context, the context of the statutory text is the government provides any portion of the money or property requested or demanded in the context, of course, of government programs. And so I think, when you try to distinguish -- this was the conversation that was also happening, I think, with Justices Jackson and Kavanaugh about how do you Official 1 distinguish mere regulation from things that are going to be covered by the False Claims Act. And I think that what you look to is the -- the sort of core of it, is the government funding one of its spending program here? And if it is, then we think context suggests that when the government is the one causing the money to move into and out of the program, it's providing. And we think that that's quite different from a lot of the situations you can imagine where the government might cause money to move but is not running a government program. And I think one -- one thing that is interesting about the word "provide," it is an extraordinarily flexible word. There are all sorts of situations where I could say to you, you know, give you a hypothetical and you would say: Oh, yeah, that sounds like someone's providing it. And I give you a slightly different hypothetical and you say: Well, that doesn't really sound like someone else is providing it. And both our brief and the government's brief have focused on what -- and so what you do is you interpret it in context. Official 1 And both our brief and the government's brief have focused on the fact that this is the context of a government spending program that Congress created, that the FCC administers tip to tail, and where all of the rules, both for how money comes out, how it has to be housed -- comes in, is housed, and then goes out are all set by the government. It's the only one making any decisions. And so I think that's how you would distinguish it even if you didn't want to talk about the vagaries of -- of agency law under the Restatement and all that.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: Mr. Singh, on -- on -- on your -- on -- on the 150 -- or the hundred million dollar option, the other side hasn't argued traceability, so that's good for you. And then the question comes to damages and whether there might be some upper limit based on the hundred million. Are you going to come anywhere near that under either theory of damages you've laid Official 1 out here?
Tejinder Singh: In this case, possibly not, but the issue would be that --
Justice Gorsuch: Okay. So that could be resolved in a future case. The -- the larger "provides" question could be resolved in a future case without doing damage to this one?
Tejinder Singh: If you leave it open, absolutely, yeah.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh? Justice Jackson?
Justice Jackson: Let me just ask one quick question. The hundred million dollars, it seems to me, is premised on the notion that that's the government's only stake in this, that -- that -- that you have to have skin in the game as the government. Here, they have a hundred million dollars in it, so that is really why the FCA cares about this. And I guess I just am struggling with that in light of my view based on the history and the broader statute that the FCA was the government's concern about the integrity of its Official 1 program, that it was trying to fund a program and have it operate and, yes, it put money into it, but it's not just the money that's at stake. Do you have a reaction to that?
Tejinder Singh: Sure. I share your view that the concerns animating the False Claims Act are broader than financial loss. I think the text of the statute in multiple places makes that very clear when it talks about whether or not the government has title to the money, when it includes any claim presented to an employee, officer, or agent, whether or not the government has provided the money. Even the remedial provision, which Ms. Ho says is a point in their favor, is, I think, a strong point in our favor because you actually still have civil monetary penalties even if the government sustains no damages. I think this case provides a useful illustration of the point you're raising. As we explained in our statement of the case, it's not only the federal government that suffered here, it's also schools and libraries. Schools and libraries were overcharged in the first instance. The federal government suffers the Official 1 brunt of the financial harm because it subsidizes that overcharging, but the schools and libraries also suffer in other contexts. Think about Medicare. Think of all -- all the programs that the False Claims Act defends. It's not just the government's pocketbook. It's the health of beneficiaries, senior citizens. It's defense programs and our ability to field a fighting force that can survive out there. There are all kinds of interests that the False Claims Act protects that have nothing to do with money, and that is why the statute does not require proof of financial loss. And, as you say, it's made quite clear in the legislative history as well.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Suri. ORAL ARGUMENT OF VIVEK SURI FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT
Vivek Suri: Mr. Chief Justice, and may it please the Court: Official 1 Unless the Court would prefer that I spend my time some other way, there are two points that I'd like to cover over the course of this 10 minutes. The first is how we'd prefer to win if the Court were to rule in our favor, and the second is addressing some of the questions that Justice Kavanaugh and Justice Gorsuch raised about the limits of our theory. If the Court were to rule in our favor, we'd prefer to win on the ground that the United States provides all of the money in the Universal Service Fund. The reasons were discussed in the previous discussion, namely, that there would be questions about damages that would be raised if the Court were to say the United States provided only $100 million. Now we think we have answers to those, but, of course, we'd prefer avoiding getting into those issues in the first place. If the Court doesn't want to go that far, then we'd urge the Court to say that the United States provided $100 million and say nothing at all about whether the United States provided all the money. As for Justice Kavanaugh's and Justice Official 1 Gorsuch's questions, I take the point that if this rule isn't carefully limited, then you get into applying the False Claims Act to all sorts of situations that it wasn't designed to apply to, like civil litigation. What distinguishes this case from those cases is that the government isn't just exercising control at the front end, requiring the money to be paid in. It's also exercising control at the back end, deciding how the money is paid out, how it's distributed, whether it goes to schools and libraries, rural hospitals, or -- or whatever other beneficiaries the government chooses. In the civil litigation context, that back-end control doesn't exist. Congress couldn't take the judgment and apply it to some other purpose that the government prefers. I welcome the Court's questions.
Justice Thomas: Is there -- can you recall a case similar to this FCA case?
Vivek Suri: Similar in what sense? I --
Justice Thomas: In the sense that we're talking about what looks like private Official 1 money going to a private organization and being distributed privately.
Vivek Suri: No, Justice Thomas, but I would like to resist the premise that this is private money. The strongest indication that this is the government's money is that, in 2008, Congress appropriated $21 million out of the Universal Service Fund for -- not for the beneficiaries but for oversight activities. Now that's something that simply couldn't have been done if this were a private bank account. Congress can't take money out of a bank account that belongs to a private individual and appropriate it for government -- governmental purposes. That's --
Chief Justice Roberts: Well -- go ahead. I'm --
Vivek Suri: But that's what Congress did with respect to the Universal Service Fund.
Chief Justice Roberts: Well, you're not saying it was okay because Congress did it, are you?
Vivek Suri: I'm say -- I'm saying that the fact that Congress did it is a clue that, as a statutory matter, these are the government's Official 1 funds. Congress regards it as the government's money. If it didn't regard it as the government's money, it wouldn't have taken it.
Chief Justice Roberts: Well, I gather you're still asking us --
Justice Kavanaugh: Really?
Chief Justice Roberts: -- to put a lot of weight on the fact that Congress did something when the question is whether or not they had the authority to do it.
Vivek Suri: No, the question is not a constitutional question, where, I agree, Congress's decision wouldn't be controlling. It's a statutory question. What are these funds for purposes of the False Claims Act? And there, it seems to me what Congress has done is pretty important because you're just interpreting what Congress did.
Chief Justice Roberts: Well, whether it's the Constitution or a statute, I still think the fact that Congress did it is not particularly determinative.
Vivek Suri: I respectfully disagree, Mr. Chief Justice. When you're interpreting a statute, the fact that Congress did something is Official 1 surely relevant to the meaning of the statute.
Chief Justice Roberts: Well, we've had a few cases that say that Congress's position is not borne out by the statute.
Vivek Suri: I think, in those cases, the Court may be referring to what individual lawmakers have done or to legislative history. Here, we have a statute that in 2008 appropriated money out of the Universal Service Fund. That, I think, proves dispositively that Congress regards this as the government's money. But, even if you think that what Congress has said isn't good enough, I'll turn to an even higher authority, this Court's precedents. This Court -- (Laughter.)
Vivek Suri: -- this Court had a --
Chief Justice Roberts: Now I understand what you're saying. (Laughter.)
Vivek Suri: This Court had a case about a -- a First Amendment challenge to conditions that were attached to the E-rate program. Libraries were required to install certain filtering software in order to receive these Official 1 funds. And the Court said these are federal subsidies provided by the federal government, all of it, not just some portion of it, and it said we're going to analyze these subsidies under the First Amendment framework for conditions attached to government funds. So not only Congress but also this Court has regarded these funds as the government's money to the extent that's relevant here.
Justice Barrett: Mr. Suri, can you just remind me the state of play? It -- it was the Fifth Circuit and the Seventh Circuit here who split, and the Seventh Circuit said, well, one reason we feel better about this is the Fifth Circuit didn't know about the hundred million. But, on the larger claim, we haven't had a lot hashed out about that in the lower courts, right?
Vivek Suri: That's right. I think there have been cases in district courts where courts have regarded this money as the government's money in various contexts. We've also brought criminal prosecutions in -- under Official 1 other statutes with respect to fraud on the Universal Service program. But, in the specific context of the False Claims Act, these are the two --
Justice Barrett: So, if we decided that larger question, we would be wading into something that really hasn't percolated very much?
Vivek Suri: Not necessarily. It -- I -- depends on what --
Justice Barrett: Besides in the district courts.
Vivek Suri: It -- it depends on what Your Honor means by the "larger question." If the question simply did the government provide all of the money in the fund, then that has percolated in the sense that the Fifth Circuit and the Seventh Circuit have both addressed that question.
Justice Gorsuch: But, to resolve --
Justice Kavanaugh: I thought --
Justice Gorsuch: -- but, to resolve -- sorry. But, to resolve the current split, we now know about the hundred million dollars. The Fifth Circuit didn't know about Official 1 the hundred million dollars. And if we were to rely on that, that would -- that would resolve the split as present -- presently constituted?
Vivek Suri: Yes, that's correct.
Justice Gorsuch: And -- and -- I -- just to understand your -- your distinction on the civil litigation side, as I heard you in your opening, the answer was because the government doesn't exercise control at the back end in how it's spent or how it's distributed, is that right?
Vivek Suri: That's correct.
Justice Gorsuch: Well, what -- what about in a class action case where the court has very reticulated rules about distribution and notice and claim processing and, gosh, a lot of -- a lot of control on the back end?
Vivek Suri: The degree of control even in that circumstance doesn't approach the degree of control here. Congress --
Justice Gorsuch: So it's a degree of control now at the back end that's the distinction?
Vivek Suri: Yes.
Justice Gorsuch: Okay. Official
Vivek Suri: Congress couldn't step in and say we're going to take that money from that class action and spend it on schools and libraries and such.
Justice Gorsuch: No, but a court could say this claimant no, that claimant yes, and if there's money left over, I'm going to give it to my alma mater. I mean, that happens.
Vivek Suri: There are questions about whether courts have the authority to do that.
Justice Gorsuch: Yeah, but if -- but if you -- again, it's one of those things that's happened, whether or not there's authority, right?
Vivek Suri: Yeah. It has happened --
Justice Gorsuch: Yeah.
Vivek Suri: -- yes, I agree. But -- but, again, I don't think a court could say we're going to spend this money on anything the court likes. There are much more significant constraints in that context than here.
Chief Justice Roberts: Counsel -- Justice Thomas, anything further? Justice Alito? No? Justice Kagan? Official
Justice Kagan: Could you tell me more about why you want to do the broader route, what you think the damages inquiry would look like in a case like this, and what you're worried about leaving on the table?
Vivek Suri: Yes. There are two reasons that we would prefer to win on this ground that we provide all the money. The first, relating to damages, is that Wisconsin Bell would argue that if the government has provided, say, only 100 million out of a billion dollars, then it should receive only a corresponding percentage of whatever the loss might be. Now we don't think that argument is right, but, again, we'd prefer in our ideal world to pretermit that altogether. The second --
Justice Kagan: What argument might you think is right? I mean, is it just you can't go over a hundred million? Is it you can go over a hundred million?
Vivek Suri: No, our position is, even if the government provided only the hundred million, then we would still be entitled to the full value of -- at -- at least the increment Official 1 between what was charged and what should have been charged.
Justice Kagan: Yeah. But is -- but what you're saying is Wisconsin Bell would certainly have an argument that's like you can't go -- you -- you -- you can't ask us for anything more than they've collected, the a hundred million. And Wisconsin Bell also might have an argument, which is actually you can't even get us for the whole a hundred million because you have to sort of have a pro rata share.
Vivek Suri: Correct. They would have that argument. Again, we don't think that argument is right, but we'd prefer to avoid that fight. The other reason is that there were some questions about what kind of tracing would need to be done. Now we don't think there's any tracing required. The very words "any portion" suggests that one drop of money is sufficient. But, again, we'd prefer to avoid that fight if we could.
Justice Kagan: And are there other programs that you're thinking about when you Official 1 stand up here, or is this the full universe of programs?
Vivek Suri: The other Universal Service programs, there are three others, would be the ones most directly affected. In addition, there are a few other FCC programs that are operated on a similar model to this one, namely, a private administrator. Outside that, I think it would depend on how the Court rules. There are some programs where the government relies on an intermediary outside the government in order to handle the fiscal administration. Medicare is a good example of that. Insurance companies are intermediaries who handle reimbursement requests on behalf of the government. Now I take Petitioner to be saying that's different because those are tax dollars whereas these are not labeled as taxes. So perhaps we'd prevail on that regardless. But it depends on how the Court rules with respect to how far-reaching the implications would be.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch? Official 1 Justice Kavanaugh?
Justice Kavanaugh: I think that just illustrates that the implications, if we go beyond the hundred million argument to the broader argument, are -- are -- are potentially large and a lot of potentially unintended consequences we have no idea about. I mean, it's -- just to save you from making -- doing the briefing on an argument that you think you're going to win anyway, I mean, I -- it seems pretty aggressive to me to go beyond the hundred million --
Vivek Suri: I -- I certainly --
Justice Kavanaugh: -- and -- and not prudent because we don't even know what we're getting into.
Vivek Suri: I certainly appreciate the concern, but I think that's why the limiting principle we've offered is important. The fact that the government exercises --
Justice Kavanaugh: But you just said it would depend on how we write the opinion. And we haven't gotten a lot -- a ton of guidance on this limiting principle and how it would affect all these -- these other programs that Official 1 you're now identifying in response to Justice Kagan's questions.
Vivek Suri: I -- again, I think the limiting principle is, if the government controls where the money is going on the back end as well, that is an indication that the government is providing the money. And that, I think, does deal with the hypotheticals that have been raised about child support or minimum wage or funds provided in civil litigation.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Mr. Suri, if we wrote the opinion to say "at least" here, where the government has provided, you have all these arguments open to you and all of these hard questions could be fleshed out later, correct?
Vivek Suri: Correct.
Justice Barrett: I mean, I understand you'd rather win big than win little, but --
Vivek Suri: Yes, that would be satisfactory, if not ideal.
Justice Barrett: Okay. And then the Official 100 other question is just in terms of -- I -- I take that point. But, in -- in terms of the practical consequences to you, you know, we haven't talked much about the agency argument, but, you know, for any claims that were for post-2009, the government isn't necessarily going to be getting into this whole splicing because you would be relying on the agency argument. So, even for you, there's kind of a limited time window where you would be focused on this as opposed to focusing on your agency argument, right?
Vivek Suri: That's right, but I imagine that entities like Wisconsin Bell would say that even if the administrator were an agent of the United States, you'd still have these arguments about how much the United States is entitled to in damages.
Justice Barrett: Sure. But we don't have the damages question before us.
Vivek Suri: Right. Right.
Justice Barrett: We just have the "provided."
Vivek Suri: I agree, yes Official
Justice Barrett: Okay. Okay.
Chief Justice Roberts: Justice Jackson? Thank you, counsel. Rebuttal? REBUTTAL ARGUMENT OF ALLYSON N. HO ON BEHALF OF THE PETITIONER
Allyson N. Ho: Thank you, Mr. Chief Justice, and may it please the Court: To just hit just three brief points. And I'd like to follow up on the discussion, Justice Kavanaugh, that you were having with my friend. I haven't heard my friends on the other side offer any meaningful limiting principle to their theory that the government provides money by requiring one private party to pay another. And I think that's -- that's because there isn't any. I think their theory would sweep in things like minimum wage laws that require private employers to pay higher wages to their employees. All sorts of private parties to private transactions would be surprised to find themselves subject to FCA treble damages liability just because a government regulation lurks in the background, and that can't be right. Second, I haven't heard my friends explain Official 102 when Congress supposedly severed the FCA's historic connection to the public fisc. The only answer they've gestured at is the title clause. But the text of the title clause makes plain that it was narrowly focused on a timing problem: the situation where the government no longer has title to the money at the time of the request because it supplied that money to the grantee before the request. If Congress had intended to break the link between the FCA and the public fisc for the first time in 146 years and to overrule this Court's decision in Kohen and other cases, it would have done so much more directly than the title clause and at minimum would have deleted the "provides" clause altogether and revised the remedial provision to reference -- that references damages to -- that the government sustains. We talked a lot today about the debts, settlement, and restitution the government collected and returned to the Administrative Company, but that money is no different in character than the private contributions that carriers pay directly to the company. Justice Jackson, I think you actually Official 103 had it exactly right when you were distinguishing the scenario with the court system. You said, well, because that -- in that situation, government is acting as an enforcer. That is exactly the role that the government is playing here with respect to the debts, the obligations, and the settlements and restitution. It is simply acting as an enforcer to provide -- to take money that is owed to the Administrative Company from the carriers, no different source. The government is not providing that money, just like the sheriff who collects judgment -- a judgment owed to the judgment debtor from the judgment debtor is providing money. It doesn't provide in any sense of that. The Court's decision in Kohen makes clear that the FCA does not apply to requests for property merely in the temporary possession of the government, which precisely describes the debts, settlements, and restitution here. We would urge the Court at a minimum to reject my friend's broadest reading that the government provides all the money in the E-rate program. Clarity on that issue may be very Official 104 important for damages calculations in this case and others involving the E-rate program. Finally, the government cannot have its cake and eat it too. The political branches chose to insulate the E-rate program from the public fisc, to keep it from being raided to plug holes in the budget and to avoid the Government Corporation Control Act. But, even though the program never puts one cent of public money at risk, my friends say they should be able to haul out the FCA's heavy artillery and recover treble damages for the supposed loss of funds that were never the government's to lose. The government can't have it both ways. Like the rest of us, it has to live with the consequences of its choices, and one of those consequences here is that the False Claims Act doesn't apply. We respectfully request that the Court reverse the judgment below. Thank you, Mr. Chief Justice.
Chief Justice Roberts: Thank you, counsel. The case is submitted. Official 105 (Whereupon, at 11:39 a.m., the case was submitted.)