UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 4, 1984
UNITED STATES OF AMERICA, ex rel. U.S.-NAMIBIA (South West Africa) TRADE & CULTURAL COUNCIL, INC., Plaintiff, against SOUTH WEST AFRICA PEOPLE'S ORGANIZATION and THEO-BEN GURIRAB, Defendants.
The opinion of the court was delivered by: SPRIZZO
OPINION & ORDER
Plaintiff commenced this qui tam action pursuant to the False Claims Act, 31 U.S.C. § 3730(b) (1982) ("the Act"), claiming that defendant the South West Africa People's Organization ("SWAPO")
has applied for and received funds from the United Nations in violation of federal law,
and has therefore defrauded the United States Government in violation of the Act, 31 U.S.C. § 3729.
Defendant contends that the complaint must be dismissed because plaintiff lacks standing to sue and because it is clear that at the time the complaint was filed, the Government had all of the information upon which the complaint is based.
Plaintiff is correct in stating that the Act confers standing on any person to bring a qui tam action for violations of 31 U.S.C. § 3729, see 31 U.S.C. § 3730(b)(1); United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 460 (5th Cir. 1977). However, such standing is subject to section 3730(b)(4), which mandates the dismissal of plaintiff's action in a case where it is clear that all the information upon which plaintiff bases his complaint was known to the Government before the action was brought. United States v. The Burmah Oil Company Limited, 558 F.2d 43, 45-46 (2d Cir. 1977); Weinberger, supra, 557 F.2d at 460 (both involving the predecessor to the present version of the Act).
At oral argument counsel for plaintiff conceded that the complaint is not based on any evidence or information which the Government did not have at the time plaintiff commenced this action. It follows that the complaint must be dismissed.
Defendants have also moved for an award of all costs and attorney's fees incurred in this action, pursuant to Fed. R. Civ. P. 11. Plaintiff has not thus far addressed this issue.Therefore, on or before June 25, 1984, plaintiff shall file a response to defendants' motion for costs and attorney's fees. Defendants shall file a reply to plaintiff's response on or before July 6, 1984.
It is SO ORDERED.