the Act that "[the] court shall have no jurisdiction to proceed with any such suit . . . whenever it shall be made to appear that such suit was based upon evidence or information in the possession of the United States or any agency, officer or employee thereof, at the time such suit was brought." 31 U.S.C. § 232(C). If relator Thompson can establish that the Justice Department acted on the basis of some impermissible motive such as racial discrimination, he may be able to obtain appropriate relief in another lawsuit, but his claim of racial discrimination is not sufficient to confer subject matter jurisdiction upon the court in this case when the terms of the Act itself clearly state that the court "shall have no jurisdiction" in the circumstances here presented.
Finally, relator Martin-Trigona objects to dismissal of the entire action on jurisdictional grounds since only one of the six counts in his complaint is predicated on the False Claims Act. He contends that, even if the motions to dismiss made by the United States and by defendants are granted, the other counts, based on alleged violation of various federal statutes, should survive. Defendants, however, have also moved to dismiss these remaining counts on the ground that relator Martin-Trigona lacks standing to pursue them. The only assertion made by relator Martin-Trigona regarding his standing to bring such claims is that he is a federal taxpayer. The Supreme Court had announced a two-pronged standing test for plaintiffs suing in their capacity as federal taxpayers: (1) The suit must challenge an enactment under the taxing and spending clause of Art. 1, § 8, of the Constitution; and (2) it must claim that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power. United States v. Richardson, 418 U.S. 166, 173, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974); Flast v. Cohen, 392 U.S. 83, 102-03, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Relator Martin-Trigona's remaining five counts fail to satisfy this test; they have nothing to do with legislation passed pursuant to the taxing and spending power of the Congress, but only with the misuse of government funds by a single member of Congress. Those counts must, therefore, be dismissed along with the action under the False Claims Act for failure of relator Martin-Trigona to establish standing as a federal taxpayer. It is well settled that federal courts do not provide a forum for the sort of "generalized grievances about the conduct of government" which are embodied in those counts. Flast v. Cohen, supra, 392 U.S. at 106, 88 S. Ct. at 1956.
In making the motion to dismiss, the United States contends that it is merely deferring a decision as to whether or not defendants should be sued for the false claims which they allegedly made against the government. The United States claims that prosecution for civil liability at this time is premature and could interfere with any criminal investigation of defendants' activities. Furthermore, the United States fears that litigation by the relators, with the evidence and information which they currently possess, could result in an adverse decision collaterally estopping the Justice Department in any future litigation against defendants. These are compelling arguments based on sound principles of the administration of justice, and there is nothing in the record to suggest that the United States has any ulterior motive in moving for dismissal at this time. In any event, the court is bound by the plain language of the statute depriving the court of subject matter jurisdiction where, as here, the information and evidence upon which the suits were based was already in the possession of the United States prior to the suits' initiation.
An appropriate order accompanies this Memorandum Opinion.
FLANNERY, District Judge.
These matters came before the court on the motions of the plaintiff United States and the defendants to dismiss the actions for lack of subject matter jurisdiction. Also before the court are the motion of the United States to consolidate the three separate actions and the request of the United States to enter a special appearance, as well as motions by the defendants for award of costs. After consideration of the motions, memoranda submitted in support thereof, opposition thereto, oral argument thereon, and the entire record herein, and for the reasons set forth in the accompanying Memorandum Opinion, it appears to the court that these cases should be consolidated and that the United States should be permitted to make a special appearance. It further appears that the court is deprived of subject matter jurisdiction in these cases by the terms of 31 U.S.C. § 232(C), the False Claims Act, since the evidence and information upon which relators' suits were based were already in the possession of the United States prior to initiation of the suits. Accordingly, it is, by the court, this 26th day of October, 1976,
ORDERED that these suits be consolidated for joint consideration of the common question of this court's jurisdiction to proceed with the actions; and it is further
ORDERED that the United States may make a special appearance in the cases for purposes of hearing the question of the court's jurisdiction; and it is further
ORDERED that the motions of the United States and of defendants to dismiss the actions for lack of subject matter jurisdiction be, and the same hereby are, granted; and it is further
ORDERED that these actions are dismissed,
PROVIDED, however, that such dismissal shall be without prejudice to any right of the United States to assert the allegations herein in its own behalf and by its official legal representatives; and it is further
ORDERED that all motions for award of costs be, and the same hereby are, denied.