Riley v. St. Luke's Episcopal Hospital

by оver were understated quarterly report Joyce RILEY, Plaintiff-Appellant, Scruggs’s figures, Using million.

$19 was insol- that Pelican Korte determined surplus deficiency of about vent and had million.10

$23 HOSPITAL, LUKE’S ST. EPISCOPAL Radovancevic, Branislav Howard O.

Third, agree we do not Frazier, M.D., Surgical Associates may only a fact that solvency of Pelican is Texas, P.A., University of Texas all claims have been be determined once Center, Bay Houston Health Science solvency The determination of settled. Medicine, College Heart necessarily in lor Texas company of an insurance Institute, Massin, future claims. See and Edward K. loss reserves for cludes Corp., M.D., Defendants-Appellees. v. Nat’l Distillers & Chem. Stephens Cir.1993) (“Because (2d fu F.3d No. 97-20948. on an insurer’s ture claims will be a drain resources, to reserves’ are established ‘loss of Appeals, United States Court value of claims which will be estimate the Fifth Circuit. car company which the paid policies Although they .... esti rying May mates, and [incurred- both case reserves report reserves must be but-not-reported] records of in the financial

ed as liabilities actu company.”). The use of

an insurance way acceptable

arial is an projections adequacy of those

calculate the reserves.

Bowler was free at trial to introduce his experts challenge or to

own actuarial government experts.

calculations of agree the district court we merely cu- report

that the 1999 LIGA find that impeaching.

mulative and We holding newly that the

the district court’s warrant a

discovered evidence does not an abuse of discretion.

new trial was not

IV. CONCLUSION reasons, AFFIRM foregoing

For the we denying court

the order of the district

Bowler’s motion for a new trial. testimony report did so. argues Scruggs's do Bowler

10. To the extent that choose, however, impeach Scruggs's report proves that testi- He did not 1999 LIGA incorrect, calling Scruggs own actuarial mony report evi- either his we find the expert by using merely impeaching. the evidence contained dence be Bowler had report. attempt impeach 1995 LIGA ample opportunity to Johnson, Hanen, Brian Patrick Alexan- der, TX, Houston, Spalding, & for Johnson Massin. Kaiser, Dayan,

Leon Bredhoff & Lisa R. Hovelson, Fraud, Taxpayers Against Center, Legal Washing- Act False Claims ton, DC, Koukoutchos, Brian Stuart Mandeville, LA, Shusterman, Alan Marc Chase, MD, Inc., Chevy Insight Associates Fraud, for The False Taxpayers Against Center, Legal Claims Act Amicus Curiae. Ventrell-Monsees, Cathy M. American Persons, DC, Washington, Ass’n of Retired AARP, Program, for Nat. Health Law Project Oversight on Government Accountability Project, Amici Government Curiae. Siemon, Vig- B.

Dorothy Marie Bruce Schuster, AARP, nery, Michael Robert DC, Washington, for AARP. Amicus Curi- Perdue, M. Mac (argued), Jim Sr. Jim ae. Perdue, Jr., Houston, TX, Riley. for Helmer, Jr., B. James Frederick Mason Ogden (argued), Dept, David W. U.S. Jr., Helmer, Morgan, Morgan, Martins & Justice, Letter, Douglas Dept, N. U.S. of Cincinnati, OH, Employment for National Justice, Div., Staff, App. Washington, Civil Ass’n, Lawyers Amicus Curiae. DC, U.S., Intervenor. for Kamenar, Paul D. Daniel Popeo, J. Smith, Jr., Boyd L. Michael Warren Foundation, Washington Legal Washing- Mengis, Kathryn Gary Ei- Lynn Hays, W. ton, DC, Slavitt, Evan McEl- Lisa Tucker land, Elkins, Houston, TX, Vinson & for Hannah, Boston, MA, roy, Gadsy & for Episcopal Hosp., St. Luke’s Radovancevic Foundation, Legal Washington Amicus Heart Texas Institute. Curiae. Southwick, Spiel- Solace Kirkland Raina Craven, Donald Baxter David Thomas Newsome, McClure, man B. Jeffrey May- Deal, DC, Conrad, Washington, Robin S. or, TX, Keeton, Houston, Day, & Caldwell Ctr., Litigation Nat. Chamber Alan I. for Surgical Frazier and Associates of Tex- Horowitz, Kipps, Clarence T. Miller & as, P.A. Chartered, DC, Washington, Chevalier for Hunter, Todd, Toni B. James C. Asst. Chamber of Commerce of the Gen., Austin, TX, Institute, Atty. University for The American Petroleum Amici Curi- of Texas Houston Health ae. Science Center. Cuneo, Boyce

William R. Joseph (argued), Troy, Warren Mark McKenna & Los Jaworski, Houston, CA, Huang, Fulbright Angeles, S. for Chamber of Commerce of & TX, Redish, U.S., Martin H. Northwestern Amer- Aerospace Uni- Industries Ass’n of Law, IL, versity ica, Ass’n, Chicago, Hosp. School of for American Electronic In- Alliance, Baylor College of Medicine. dustries Nat. Defense ‍‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌​‌‌​​​‌‌​​​​​​​‌‌​‌‌​‌‌‌​​‌‌​‍Industrial DC, Council, P. Pogue, Washington, Melanie Sar- Professional Services Ass’n wal, Austin, TX, Corp., for FMC Amicus Amici Curiaе. Curiae. Smith, Reed, Shaw Murphy, P. Stephen DC, American Washington, McClay,

& (AHCA), Amicus Curi- Ass’n

Health Care ae. JOLLY, HIGGINBOTHAM, Before Dees, Stanley Aragon, M. C. Ray DAVIS, JONES, SMITH, WIENER, DC, Cuneo, Her- Washington, & McKenna BARKSDALE, GARZA, M. EMILIO Cuneo, Fenster, Den- L. McKenna & bert BENAVIDES, STEWART, DeMOSS, Bacon, ver, CO, & McKenna Barbara Jean PARKER, DENNIS, Judges.* Circuit Cuneo, CA, Gregory Thomas Angeles, Los VA, Cuneo, Arlington, & Jaeger, McKenna STEWART, Judge: E. Circuit CARL America, Industries Ass’n Aerospace en banc to We took this case reconsider Ass’n, Indus- Hosp. Electronic American provisions the issue of whether the tam Alliance, Nat. Defense Industrial tries (“FCA”), of the False Act which Claims Council, Professional Ass’n and Services citizens, relators, permits private Amici Curiae. actions for fraudulent claims pursue Austin, Bierig, Sidley R. & Chica- Jack government, name of the federal violate Weis, Skadden, IL, Arps, E. go, Andrew separation powers the constitutional Flom, DC, Slate, Washington, & Meagher Ap- the Take doctrine under Care Ass’n and the Ass’n for American Medical II. pointments Clauses of Article Because Amici Colleges, American Medical Curi- intrusion, no unconstitutional we find such ae. reverse and remand to the district we court. Schenck, Black, Bert

David John Luce, Cochran, & Hughes Esther Hyoung AND PROCEDURAL FACTUAL

Dallas, TX, Manufac- for National Ass’n of HISTORY Ass’n, Amici Cu- turers and American Ins. Riley (“Riley”), a former nurse at Joyce riae. (“St. Episcopal Hospital St. Luke’s D. Hack- Dellinger, E. Jonathan Walter Luke’s”), defendants under the eight sued DC, er, O’Melveny Myers, Washington, & FCA, claiming Sys- of American Health for Federation conspired to de- defrauded and tems, Amicus Curiae. Treasury in viola- States fraud United Mintz, Oberbroeckling, Lev- Laura Jean Riley proceeded with tion of the statute. Ferris, in, Cohn, Popeo, Glovsky & Wash- although government exer- the lawsuit DC, Labora- for American Clinical ington, under 31 not to intervene right cised its (ACLA), tory Ass’n Amicus Curiae. 3730(b)(4)(B) (2000).1 § The dis- U.S.C. Katsas, Riley’s dismissed Ayer, Gregory subsequently B. G. trict court Donald Jones, standing grounds.2 appeal, On Kennedy, Day, Reavis & lawsuit on B. Jоhn * proceeds initiated participate in lawsuits Judge King in this cent of the Chief did decision. which the chooses relator in 3730(d)(1). § intervene. 31 U.S.C. exchange, qui plaintiffs, such as Ri- 1. In up percent ley, may recover to 30 action, Riley Epis reason- proceeds of an in addition to v. St. Luke’s States ex rel. United costs, attorneys’ al., action is fees and if the F.Supp. able Hosp., 1268-69 copal et Relators, 3730(d)(2). U.S.C. successful. 31 (S.D.Tex.1997). however, may per- a maximum of 25 recover however, Beck, En- although this Court held that The False Claims Act and the Qui Riley standing to under Article glish Legislation, had sue Eradication Tam III,3 pursued tam actions under the 78 N.C. L. REV. 541-42 FCA in which the does not rela- proceeds increase available to intervene violate the doctrine of augmented tors has resulted in an number powers and the Take Clause. Care by qui of lawsuits filed tam relators. Id. September at 542. As of more than States intervened to defend United tam lawsuits had been filed. Id. constitutionality of the FCA. We sub- Moreover, more than a billion dollars have sequently decided to rehear this case en recovered under the been FCA banc, delayed pending Supreme provisions since 1987. Anna Mae Walsh Stevens,4 Court’s decision Burke, Qui Blowing Tam: the Whistle Sam, 869, DISCUSSION 21 Nova L. Rev. Uncle 871 (1997). History I. The Role of practical effects of the amend- 1986 Qui tam lawsuits have been used notwithstanding, ments FCA throughout American English history Supreme gave Court in due cre- Stevens as a means to discover and to important dence to the historical role that against fraud the national In- treasuries. qui played tam have lawsuits on both sides deed, Founding Fathers the First of the Atlantic as a means to root out Congress enacted a number of statutes corruption against governments. national Stevens, authorizing qui tam actions. 529 Scalia, writing majority Justice for the 7-2 nn.5-7, аt 120 Af- 793-96 S.Ct. 1858. Stevens, history qui in noted that the undergoing

ter a decline in popularity and tam nigh was “well conclusive” with re- need, tam, qui guise origi- under the spect resolving question of whether FCA, enjoyed nal during renaissance qui fihng tam relators suit under the FCA era. This pre- Civil War renaissance was Stevens, III standing. have Article cipitated by a desire to widespread combat 792, U.S. at 1858. corruption amongst and fraud defense con- supplied tractors who Army. Union Although the Court in ex- Stevens Stevens, at 529 U.S. 120 S.Ct. 1858. pressed opinion no regarding the role history evaluating in the Article II Take 1986, qui In tam underwent a similar Appointments questions, Care and Clauses surge popularity Congress’s after deci- persuaded logically we are that it is ines- sion to pro- amend FCA order to capable history that the same that was mote such lawsuits the face of an ever- question conclusive on the Article III growing federal deficit that and fears de- respect fense Stevens with tam lawsuits again contractors were once defraud- similarly initiated under the government. important The most FCA con- respect clusive with Congress ques- amendment that made to the to the Article II Indeed, legislation concerning was to tion increase reward this statute. plaintiffs. Randy offered to tam dissent in that history J. Stevens noted alone Supreme 3. The United States Court 4. subse- For further examination of the factual and quently standing case, held that relators have procedural Riley background of this see bring qui tam actions under the FCA. Vermont al., Episcopal Hosp., v. St. Luke's et 196 F.3d Agency Natural Res. v. United States ex rel. (5th Cir.1999), vacated 196 F.3d Stevens, 529 U.S. Riley and United States ex rel. v. St. Luke’s We, therefore, pretermit L.Ed.2d 836 al., Episcopal Hosp., F.Supp. et discussion of this issue. litigation pursued by qui under the FCA a whether the question resolves First, Article in the FCA violate tam relator. therе is little doubt provisions evidence, to- II, stating “[t]hat [historical] the Executive retains such control private pros- with the evidence gether when it intervenes an action initiated in the 19th commonplace ecutions were Second, even in where a relator.5 cases to resolve century ... is also sufficient intervene, does not there in- has II Court question Article pres- are a number of control mechanisms ante, at n. 8.” sponte, sua troduced provisions ent in the of the FCA Stevens, 120 S.Ct. 1858. that the Executive nonetheless retains a so J., Therefore, (Stevens, we dissenting). significant amount of control over the liti- although not the sole history, find that gation. The record before us is devoid of the view supporting argument definitive any showing government’s ability do not that the FCA’s authority exercise its has been thwarted II, certainly a “touchstone violate Article in cases where it was not an intervenor. Ri- constitutionality. their illuminating” moreover, precedent, accords with Our (Stewart, J., dis- at 543-44 ley, 196 F.3d position that this en banc court now Moreover, per- historical senting). Searcy Electronics N. Philips takes. helpful bridge us with spective provides (5th al., Am. et 117 F.3d 154 Cir. Corp., the statute itself. workings into the 1997), clearly per we held that the FCA government mits the veto settlements Qui The Executive’s Control Over II. by qui plaintiff a tam even when it remains the Tam Actions Initiated Under litigation. in the We cited several passive FCA ways government may in which the as may private pursue a citizen That in qui litigation control over tam sume FCA, whether litigation tam under the qui the which it does not intervene under to intervene or government the chooses id., 117 noted See F.3d at 160. We FCA. choose, with does not interfere does not take only may government that not the constitutionally assigned the President’s notification, days over a case within 60 Take functions under Article II’s Care beyond it also intervene at a date the states that Although Clause Clause. showing good 60-day period upon the “take that the the Executive must Care Id., 31 (citing 117 F.3d at 159 cause. executed,” faithfully it does not Laws be 3730(d)(2)(A) § U.S.C. U.S.C. prescribe litigation by require Congress to 3730(b)(3) (c)(3)). also §§ & This Court the exclusive means of the Executive as retains the government the stated Const, art. enforcing federal law. U.S. “not unilateral to dismiss an action II, though Congress § has 3. even withstanding objections person.” the allowed alternative mecha historically Id., (citing 117 F.3d U.S.C. against enforcement nisms of fraud 3730(c)(2)(A)). § of affairs government, federal this state therefore mean that the Execu does not Epic ex rel. Russell v. In United States litigation tive’s functions to control such Mgmt. Group, we held that Healthcare necessarily impinged. in a tam suit filed under parties, in does not noted, FCA which the United States previously As this Court has intervene, file a notice of days have 60 significant Executive retains control over universe. See majority's original holding tam panel was dress this subset 5. The govern- solely Riley, limited to cases in which at 529 196 F.3d n. intervene, and it did not ad- ment does 4(a)(1) if the appeal under Rule of the Federal tions relator receives notice and hearing Rules of Civil Procedure.6 193 F.3d settlement. U.S.C. Cir.1999). 3730(c)(2)(B). (5th § similarly Additionally, stated in in the area We although discovery, government does of if the shows that government Russell intervene, discovery plaintiff initiated litiga- its involvement noted, interfere with the tion nonetheless continues. Id. We “would Government’s that, in or example, investigation prosecution for addition to the control of a criminal already civil matter out Searcy, arising mechanisms stated or of the same facts, may stay discovery it court government “may request that be served for more,” copies pleadings depo- sixty days аnd be sent whether or not the ... transcripts may pursue intervenes. [and it] sition U.S.C. 3730(c)(4). remedies, § alternative as administra- such. 307; proceedings.” tive Id. at see also 31 reason, apparent For this therefore 3730(c)(3) (5). § U.S.C. We also noted Supreme decision in Mor Court’s despite government’s non-inter- Olson, rison

vention, larger it “receives the share of 2597, (1988), primary 101 L.Ed.2d 569 any recovery,” amounting up to 70% of which upon Riley panel majority case Id.; proceeds of a see also 31 lawsuit.7 analyze constitutionality relied to 3730(d)(1) U.S.C. provisions of the FCA under Furthermore, II,8 the FCA itself describes is inapplicable present Article ways ‍‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌​‌‌​​​‌‌​​​​​​​‌‌​‌‌​‌‌‌​​‌‌​‍several additional in which the At Unit- discussion. issue Morrison were the independent ed States retains control over a lawsuit Eth counsel (“EGA”), plaintiff. per filed the area of ics Government Act which settlement, example, delegation prosecu mitted the of “criminal may objec- a judicially appointed settle a case over relator’s tion functions to a Riley majority gleaned four-part 6. We nonetheless affirmed the district 8.The court's a test qui dismissal of the tam suit in be Russell from Morrison to determine whether the Ex- plead cause the relator failed to fraud with ecutive retains sufficient control and discre- 9(b) particularity in accordance with Rule by qui plaintiffs tion over lawsuits filed tam the Federal Rules of Civil Procedure. Rus under the FCA consistent with the Take Care sell, 193 at F.3d 306. Clause of Article II. This test included the 1) following inquiries: whether the Executive 7. In United ex rel. States Foulds v. Texas Tech cause; 2) good remove the relatpr Univ., we also held that the Eleventh Amend may request ap- whether the Executive qui by private plain ment barred a tam suit a relator; 3) pointment of the the Ex- whether against public university tiff a in which the relator; jurisdiction ecutive defines the of thе intervene, government did not and we stated 4) and whether the relator must abide that there is a continuum of control that policies Department Riley, of the of Justice. qui has in tam lawsuits. 171 denied, (5th Cir.1999), panel majority, 196 F.3d at 527-28. The F.3d 289-90 cert. however, emphasized 530 U.S. the second factor of 147 L.Ed.2d hand, govern On the one by focusing control Morrison test on two ele- complete 1) ment has control when it decides to prose- ments: Executive does not have hand, although intervene. Id. On the other prosecute cutorial discretion to a claim significant we indicated that a relator has 2) brought by plaintiff; tam and litigation gov control over when the Executive does not have sufficient control intervene, ernment chooses not to we stated litigation over the if it does not intervene in still "retains some con litigation once it is commenced. Id. at 289-90, trol over the tam suit.” Id. at 528. Thus, holding 293. our in Foulds does not position contradict our en banc now. only by duty investigate undertaken its and to removed who could be prosecutor Justice, “the Department of General, only and under Attorney General, all other Attorney and officers require cause’ ‘good constrained highly employees Department and of Jus- Separation-of-Powers Returning ment.” all suspend investigations tice shall Roots: The Analysis to Its Normative matter, proceedings regarding except such Qui Tam Actions and Constitutionality of 594(d)(1) required by to the extent section Civil Private Suits Other Enforce 594(d)(1)], §§ except [28 [sic] USCS (Envtl.L.Inst.) Fines, Rep. Envtl. L. independent agrees insofar as such counsel (Dec.2000) 11,081, [hereinafter at writing investigation pro- that such Separation^of-Powers Returning ]. ceedings may Depart- be continued upheld independent Morrison Court Justice”). ment of finding do provisions, counsel Second, in independent contrast to cоun principles by powers violate sel who undertake functions relevant to a upon the Execu impermissibly infringing prosecution, simply criminal relators are either the duties under tive’s constitutional litigants. civil No function cuts more to Appointments Clause or the Take Care the heart of the Executive’s constitutional Morrison, at Article II. Clause of duty to take care that the laws faithful 696, 108 2597. ly prosecution. executed than criminal Morrison, it examined similar although public prosecutions Since the advent of States, to the questions regard ... private constitutional the United “no citizen II, subject private can another citizen to the duties under Article Executive’s unique virtually powers unfettered present to the discussion of relevant .... prosecutor a criminal The burdens of relators, filed which invokes civil suits imposed cannot be investigation criminal rea- plaintiffs, principal for two private target investigator any unless has First, indepen- assigns the EGA sons. duly been clothed with the to act as the United States dent counsel through legally that is process state itself, in contrast FCA’s Returning Sepa politically accountable.” which authorize the rela- provisions, be ration-of-Powers, a lawsuit the name of the bring tor to counsel independent cause the 594(a) (2000), 28 U.S.C. United States. tam qui issue in Morrison and the (authorizing § expired by 28 U.S.C. 599 two dif provisions Riley central to involve pow- to have “full independent the counsel lawsuits, the Executive types ferent of authority to exercise independent er and in types different of control must wield two prosecutorial and func- investigative all constitutional to ensure that its order powers Department and of the of tions impinged. II duties under Article Justice, General, Attorney any the arise, occasion these two differ Should the employee Depart- of the other officer necessarily types require ent of control Justice”); see also 28 ment of U.S.C. of two different sorts of tests. application (not- 594(i), § § 599 expired by 28 U.S.C. Hence, that Morrison control test independent per- that counsel and majority to evaluate the consti panel used independent that coun- appointed sons in provisions tam tutionality qui of independent from and of separate sel “are the in dispositive of simply FCA is Justice”); Department of 28 U.S.C. case, entirely differ as it involves an stant (stat- 597(a), § expired by entirely 28 U.S.C. 599 different requires ent lawsuit independent an counsel has control mechanisms.9 ing that when 1993), to examine the Cir. also used Morrison Circuit in United States ex rel. 9. The Ninth Co., (9th Kelly Boeing 9 F.3d 752 v. traordinarily deciding in argument is a credible that wide discretion There also Indeed, that discre- prosecute. the EGA’s inde- whether to upheld because the Court by other provisions only under Article tion is checked constitutional pendent counsel II, against similarly uphold qui provisions prohibition the FCA’s such as the it would a narrow doctrine under the same Article. racial discrimination and provisions tam Nonetheless, involving prosecution. in of capacities, Relators sue civil selective made the decision power, of traditional Executive when the Executive has lesser uses case, large to initiate the criminal dis- independent in contrast counsels who its considerably and the greater power wield “Executive” cretion is narrowed arguably dispose in case shared in they power act criminal contexts.10 because Branch. part with the Third Moreover, qui tam powers of a rela- 48(a) example, in For Rule of the Federal tor to interfere the Executive’s over- clearly Rules Procedure states arching power to to control of Criminal litigation although are seen to be slim indeed when that the Executive has the individual, provisions of the FCA are to indict an it not dismiss qui tam in such an indictment without “leave of examined the broad scheme of 48(a). judicial system. Similarly, court.” prosecu- American Fed.R.Crim.P. historically tion of criminal cases has lain Rule of Federal Rules of Criminal II requires approval plea close to the core of the Article executive Procedure court of judicial bargains, function. The Executive Branch has ex- check that functions question provi Corp., tam v. of whether FCA's United States ex rel. Hall Tribal Dev. (7th Cir.1995) separation powers. (reiterating sions violate of In con 49 F.3d government, by the "it trast to the Morrison control test used not the individual however, relator, suit”); panel majority Riley, plaintiff the Ninth who is the real in the independent pro Taxpayers Against Circuit relied on the counsel United States ex rel. Fraud Co., (6th simply visions discussed in Morrison as an v. Gen. Elec. 41 F.3d 1994) analogy. example, analyzed (stating pro For Cir. that the FCA’s tam provisions in the FCA the extent visions "do not contradict the constitutional " Rather, they [compared] 'as a whole1 principle separation powers. ” independent provisions counsel ‘as a whole’ particular have been crafted with care to whether FCA "taken as whole” primacy maintain the Branch principle separation powers action, violates the prosecuting even when false-claims by unduly interfering with the President’s process”); Kelly, the relator has initiated the Kelly, constitutional role. 9 F.3d at 752. part (holding 9 F.3d at provisions do the FCA not violate the con principle powers); 10. Other circuits have stitutional either cited control mechanisms in the FCA that we now discuss United States ex rel. Kreindler & Kreindler v. already position Technologies Corp., or have taken the we now United F.2d See, (2d 1993) e.g., (stating declare en banc. Cir. that "the United States FCA Possibilities, P.S.C., usurp Health 207 F.3d do not the executive Cir.2000) (6th (holding litigating abso- branch’s 340-41 function because stat Attorney gives lute consent of the General is re- ute the executive branch substantial quired may litigation”); before a relator settle an action control over United States ex qui provisions under the tam of FCA even rel. Milam v. Univ. Tex. M.D. Anderson of Ctr., action); (4th Cir.1992) when it does not intervene in the Cancer 961 F.2d 48-49 Regents (emphasizing power gov rel. Zissler v. the "extensive United States ex Univ. of Minn., (8th Cir.1998) [qui litigation” F.3d ernment has to control tam] of (agreeing underscoring with other circuit courts that the that the United States is the plaintiff” qui party United States is "the real in "real in a tam under interest” action filed FCA, power” because of its "extensive to control that it "is entitled to the lion’s share recovered,” litigation any tam as well as the "extensive amount and that it cause). upon showing good flowing any recovery”); benefit from intervene [it] to herein provided that of Rule 48. ments are not otherwise manner similar 11(a)(2).11 for and which shall be established law. Fed.R.CRIM.P. law, Congress may, by But the vest the judicial system al- although our appointment of such inferior officers as intru- seemingly greater lows for these ... in they may proper think the heads of the Executive’s Judiciary into sions Const, II, 2,§ departments.” U.S. art. cl. crim- in the paramount power panel majori- 2. The district court and the context, and the Rule Rule inal ty Riley ques- in declined to address this justice system have not suffered criminal tion, pit- presented but it is to us en banc systemic the constitutional and from ascribed to the FCA’s falls that have been because it was raised the district court See, e.g., provisions. tam United finding as an additional basis fоr constitu- (5th Cowan, 524 F.2d States v. deficiency tional Cir.1975) phrase ‘by that “the (stating persuaded of the We are that this FCA. 48(a) court’ in Rule was intended leave of argument holds even less than the vitality power modify and condition absolute arguments made about the Take Care Executive, consistently with the of the Clause, given qui tam relators are not Powers, concept Separation Framer’s officers of the United States. a check on the abuse of Execu- by erecting Supreme precedent Court has estab- Any by the prerogatives”). intrusion tive lished that the constitutional definition of relator in the Executive’s Article qui tam minimum, at a encompasses, an “officer” modest, comparatively espe- II is continuing relationship and formalized inher- cially the control mechanisms given with the employment United States Gov- mitigate in the FCA to such an intru- ent Hedden, v. ernment. See Auffmordt tamqui and the civil context which sion 310, 327, 11 L.Ed. Hence, pursued. suits are (1890) (finding appraiser that a merchant violate the of the FCA do not portions an “officer” for purposes is not constitutional doctrine of position where his Appointments Clause the Executive’s powers by impinging upon duration, tenure, continuing emol- without duty to take care that the constitutional ument, duties); or continuous United Article faithfully laws are executed under Germaine, 508, 511-12, States II of the Constitution.12 (1878) (holding that a sur- 25 L.Ed. 482 Qui III. Tam Provisions do The FCA’s of Pen- geon appointed Commissioner Appointments not Violate the Clause an “officer” where his duties sions was not continuing permanent). were Appointments Clause states relationship regard There is no such nominate, that “the President shall part relators, therefore by and with the advice and consent of subject to either the benefits or the ... appoint all other offi the Senate shall States, associated with offices of appoint- requirements whose cers United 11, however, Separation of the same perhaps less intrusive are two different sides 11. Rule instances, the Judi- judicial of Powers coin. In both vis-a-vis the Executive Power than sphere phase, ciary may the traditional as the not enter into intervention the indictment guilty plea implicates adjudication power, cannot enlist of Executive and citizens police govern- guilt distinctly judicial judiciary quest in a function. —a personal distinct from ment interest absent Although we find this argument II’s that of all citizens. 12. There is also an that Article standing argument persuasive, we limit our discussion Article Take Care Clause and Ill's Stevens, herein. to the issues examined requirement, resolved the Court in instance, recognize tam fails to either the encroachment qui For United States. from turn- salary on executive that results do not draw a plaintiffs government’s their of the required litigation and are not establish over There- relators or the public employment.13 self-appointed fitness for business to fore, persuaded consequent separation pow- we are FCA’s violations of of Appoint- do not violate the I provisions Accordingly, respectfully tam dissent. ers. ments Clause.

I. Separation Violations of CONCLUSION Generally. Powers of reasons, foregoing For the we hold power among divides Constitution provisions of the False Claims pur ultimate the three branches. “The principle separa- violate the Act do not powers is to pose separation of this by impermissibly infringing powers tion of security gov protect liberty and duty Execu- upon constitutional of the Metropolitan Washington Air erned.” care that the laws are faithful- tive to take ports Auth. v. Citizens Abatement ly executed under the Take Care Clause Inc., Noise, Aircraft similarly Article II. We hold that 2298, 115 L.Ed.2d 236 As S.Ct. provisions do not violate FCA’s Attorney explained: former General Levi We, therefore, Appointments Clause. pow- The essence of the to the district REVERSE REMAND concept by the Founders ers formulated proceedings. court for further political experience and philos- from the ophy revolutionary era is that REMANDED. REVERSED AND branch, ways,

each in different within SMITH, Judge, E. JERRY Circuit sphere powers of its defined DeMOSS, joins Judge, whom Circuit subject to the distinct institutional re- dissenting: sponsibilities of the others is essential to liberty security people.

Allowing pursue relators False branch, way, Each in its own is the (“FCA”) Claims Act tam actions people’s agent, fiduciary its for certain in- which the has declined to purposes.... tervene violates the Take Care Clause1 and obli- II.3 Fiduciaries do meet their Appointments Clause2 Article gations by arrogating to themselves the Although Judge presented Stewart has well-written, of their other comprehensive opinion on be- distinct duties master’s majority, majority agents. half of the en banc holding deputies 13. We note also that our does not to uncover and frauds against government”). differ from that of at least one member of the Supreme Court and other circuit courts. II, 1. U.S. Const, art. 3. plainly dissent in Stevens stated that the FCA’s Appoint- do not violate the II, § 2. U.S. Const, art. 2. ments Clause. 529 U.S. at J., (Stevens, dissenting). Circuit courts Although repeatedly I refer to the constitu- according regarding with our view en banc FCA,” tionality vel non of "the this case deals Sixth, Appointments include Clause only with the subset of FCA actions in small Ninth, See, e.g., Taxpay- and Fourth Circuits. which the United States elects not to inter- Fraud, 1041; Against Kelly, vene, ers 41 F.3d at consequently goes and the relator for- 758; Milam, (implicitly F.3d at 961 F.2d ward with the action on his own. There is no supporting argument stаting question litigated by gov- that FCA claims "Congress posse has let loose a of ad hoc ernment constitutional.

759 Levi, Separation greater facility, Pow- can mask under Aspects Some of (1976). measures, complicated and indirect L. Rev. ers, Colum. 76 371 385-386 encroachments it makes on the which police to duty It of the courts departments. co-ordinate It is not un- separation powers.4 boundaries frequently question real-nicety in carefully that must be most The branch bodies, legislative whether operation against attempted encroach- monitored measure, will, particular of a will or not legisla- other branches is the ments on the beyond legislative sphere. extend tive, explained: Madison as James (J. 48, The FedeRalist No. at 332-34 denied, is of an power It will not be ed.1961). Cooke nature, it encroaching ought and that to protect against danger legis- To effectually passing restrained from be encroachment, lative the Constitution for- assigned to it.... the limits Congress bids to “invest itself or its republics of our ... The founders power Members with either executive have turned never for a moment to seem Jr., judicial power.” Hampton, J.W. & liberty eyes danger their from the States, 394, 406, v.Co. United 276 U.S. overgrown all-grasping from 348, pro- S.Ct. 72 L.Ed. 624 This hereditary magistrate of an prerogative only Congress hibition applies They ... seem never to have recollected agents, also to its as explained Bowsher danger legislative usurpations; from 714, 726, Synar, v. 478 U.S. 106 S.Ct. assembling all in the which (1986): 3181, 92 L.Ed.2d 583 hands, tyr- must lead to the same same permit To of the laws to execution anny as is threatened executive usur- be vested an officer answerable against enterpris- .... pations [I]t would, terms, Congress practical department, ambition of this Congress reserve in control over the indulge jealousy all their people ought execution of the laws.... The structure precautions. all their and exhaust permit of the Constitution does not Con- laws; it gress to execute the follows that department derives a legislative Congress grant cannot to an officer un- superiority governments our from possess. der its control what it does not Its other circumstances. constitutional powers being at once more extensive pellucid sep- the Constitution is limits, permit It susceptible precise powers.5 and less aration of does pense separation-of-powers 4. of the other.” We have not hesitated "Violations principle each which violate have been uncommon because to invalidate of law prerog- traditionally respected the principle. branch has Nevertheless, 693, Olson, 654, atives of the other two. 487 U.S. Morrison v. responsibility (1988) (selective has been sensitive to its Court S.Ct. 101 L.Ed.2d 569 principle necessary.” when omitted). to enforce the internal citations Auth., Washington Airports Metropolitan States, Humphrey’s Executor v. United See 111 S.Ct. 2298. 602, 629-30, L.Ed. 295 U.S. again we have Time and reaffirmed (1935) ("The necessity of fundamental importance in our scheme of constitutional maintaining general depart- each of the three governmental powers into government entirely ments of free from the the three coordinate branches. As we stat- influence, indi- control or coercive direct or Valeo, Buckley ed in others, rect, of either of the has often been (1976), sys- 46 L.Ed.2d hardly open ques- stressed and is to serious separated powers tem of and checks Wilson, ... one of the framers of tion. James balances established in the Constitution was justice a former of this regarded by the Constitution and the Framers as "a self-execut- court, independence of еach said that ing safeguard against the encroachment or proceedings department required that its aggrandizement of one branch at the ex- 760 designed The Take Clause was as one of Care

Congress power to vest executive separation pow- a crucial of bulwark present- Congress’s agents. question The far from a dead letter or obso- ers and is whether the Constitution ed this case is 1997, recently as the Su- lete relic. As Congress vesting from also forbids preme cited the Take Care Clause Court agent power self-appointed in a executive (on grounds) provisions other of striking answers to no one. The answer to who Act, Brady explaining: no, question must be because Con- spec- The Constitution does not leave to violated both when one branch stitution is ulation who is to administer laws aggrandizes itself at the of President, by Congress; enacted of another and when one branch expense 6 take Care that the Laws be says, “shall the consti- “impermissibly undermine[s]” executed,” II, 3, faithfully Art. person- tutionally granted powers and functions of ap- he ally through and officers whom another, aggrandize- if there is no even Brady effectively .... Act points The ment.7 responsibility transfers this to thousands of law enforcement [state officers] II. and Take Care Clause States, ‍‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌​‌‌​​​‌‌​​​​​​​‌‌​‌‌​‌‌‌​​‌‌​‍implement 50 who are left to Separation Powers. meaningful program without Presiden- A. Violations Take Care Clause. (if meaningful tial control indeed Presi- Take Care Clause states possible dential without the control Executive “shall take Care that the Laws remove). in- power appoint and Const, art. faithfully executed.” U.S. be unity in upon sistence of the Framers II, § It gives power 3. both the Federal Executive—to insure laws, v. Springer to enforce the see Gov- vigor accountability well- —is Islands, 277 Philippine unity ernment U.S. ... known. That would be shat- 202, 480, 189, (1928); tered, 72 L.Ed. power 48 S.Ct. 845 President reduction, subject in- would be if Con- authority such includes the “to gress effectively could act as without the against the vestigate litigate offenses him, by simply requir- President as with United States.” United States ex rel. ing state officers to execute its laws. Inc., 714 Hughes Helicopters, Stillwell v. (C.D.Cal.1989) 1084, States, F.Supp. (citing 898, Printz v. United 521 U.S. Valeo, 138, (cita- 1, (1997) Buckley 2365, v. S.Ct. S.Ct. 138 L.Ed.2d 914 omitted).8 (1976) curiam)). 612, tions (per 46 L.Ed.2d 659 Servs., 425, 2777, 443, influence, Gen. 433 U.S. 97 S.Ct. free 'should be from remotest (1977); indirect, Kinkopf, 53 L.Ed.2d 867 see also Neil direct or of either the other two Devolution, Andrews, ”) powers.’ (quoting 1 Privatization Globaliza- The Works of Of tion; Separation Congres- (1896)). Powers Limits on James Wilson 367 Authority Assign sional To Federal Power to Morrison, 658, 331, 487 U.S. at 108 S.Ct. 2597. Actors, 50 Rutgers L. Rev. Non-federal 338-39 Jones, 681, 701, 7. See Clinton v. 520 U.S. 1636, (1997) (stating early 137 L.Ed.2d 945 8.The Court observed stat- Printz powers requiring that "the doctrine re- utes state officials to enforce feder- quires impair imposed only adjudicative, al that a branch not another in tire laws not execu- Printz, tive, duties”) performance on state officials. See of its constitutional duties States, (quoting Loving (recognizing v. 517 U.S. U.S. at 117 S.Ct. 2365 United (1996)); obligations "early imposing 116 S.Ct. 135 L.Ed.2d 36 statutes [federal] 694-95, Morrison, noting 487 U.S. at 108 S.Ct. 2597 on state courts” but an "utter lack of (1988); obligations Commodity Trading imposing statutes on the States' Futures Com'n Schor, 856-57, executives”). This observation counters (1986); history government's argument 92 L.Ed.2d 675 Nixon v. Adm’r of Act, assign the violates ecutive—to their enforcement. It Brady the FCA Like Congress does not save the Act that did in the powers embodied separation the give not itself the enforcement power it ways. in a number of Take Care Clause Executive, took from the because the Act First, political the accounta- diminishes “impermissibly undermines” Executive Executive for enforcement of bility of the control, by wresting functions from the allowing any private citizen to by the laws President, the initiation prosecution even government, sue on behalf of government lawsuits. be- though Attorney perhaps Generаl — Defendants need show no more than this he believes that institution of the cause to separa- establish Take Care Clause in- government’s mimical to the action is Nevertheless, tion-of-powers violation. pursue decided not to terests —has further, goes aggrandizing FCA both from the Executive claim.9 This removes Legislative and Judicial branches: that is prosecutorial Branch the discretion first, by allowing Congress to enforce laws power at the heart of the President’s to Executive; second, without reliance on the laws,10 execute the and leaves no one by decreasing Executive power, which who accountable for the government Congress relatively makes stronger; and prosecution claims. third, by shifting some of the discretion to built into the Constitution protections bring suit and to control the action from selective or harsh enforcement of against judiciary, the Executive to the as I discuss quashed laws are FCA suits conducted infra. by relators. Third, does provide FCA Second, the FCA violates the enough Executive with control over the Take principles embodied powers relator to able care be to “take by aggrandizing both Con- Care Clause faithfully laws be executed.”12 The deci- under- gressional power impermissibly sion to initiate the lawsuit is made mining power.11 Through Executive relator, input without from the Execu- statute, Congress has invoked both own its tive.13 absolutely has no way that of the Ex- control of the relator and therefore pass laws—and no —to ("[T]he executing state officials’ federal law demon- Executive Branch has exclusive au- require thority strates that the Constitution does not to decide and absolute discretion case”); meaningful that the President retain control whether to Heckler v. 821, 832, early federal law over enfоrcement. Chaney, 470 U.S. 105 S.Ct. government points (1985) to which the as statutes (refusing force EPA L.Ed.2d 714 to indicating historically action) (”[T]he that state officials have prosecu- to take decision of a permitted law ad- enforced federal have tor in the Executive Branch not to indict ... tasks,

judicative properly could long special prov- regarded has as the been Branch, have allowed state officials to sue on behalf ince of the Executive inasmuch as it government, of the federal for lawsuit is “[a] charged by the is the Executive who is Consti- law, remedy the ultimate breach of the faithfully tution to Care that the Laws be 'take and it is to the ... that the Consti- President ”). executed.’ responsibility tution entrusts the to 'Take ” faithfully Care that the Laws be executed.’ 6-7, supra, accompanying 11. See notes Valeo, Buckley 424 U.S. text. § 12. U.S. art. II Const, ("If 3730(c)(3) § 9. See U.S.C. the Govern- action, proceed ment elects not with the government may 13. It is true that the inter- person who initiates the action shall have sixty days vene within and seek dismiss action.”). right to conduct the 3730(c)(2)(A). It can- lawsuit. 31 U.S.C. not, however, Nixon, right. as of 10. See United States v. dismiss suit (1974) right be at a 41 L.Ed.2d The relator has the heard it will an active guarantee that take care that no “take[s] that he to ensure in these cases or that the settle- interest The relator faithfully executed.” laws be approved ments reached a relator Department have to follow does not will be of the same sort DOJ (“DOJ”) agency no re- policies, has Justice would reach on its own for has no fi- government,14 with the lationship public.16 the benefit it, no and has duciary or other duties the best pursue whatsoever to obligation may freely the Executive dismiss Nor Instead, the United States.15 objects interests of If the relator to qui tam action. dismiss, negotiate can a settlement government the relator to the the decision public than in the of the motion notify filing interest rather him of the his own must dismiss, him a grant must be and the court must government While the interest. settlements, permit hearing deciding before whether to all there is such consulted degree power over the Un- retains "a of control hearing is dismissed. Id. before the suit forma, statutory hearing merely pro is less the to initiate” the action. cases the Executive it follows that in some overcoming the rela- unsuccessful in will be theory that the rea 16.Public choice tells us objections dismiss and will be unable to tor's that, although government, the son for this is the suit. own, might to seek the its not be inclined Further, Riley which in cases—such as —in negotiated by private settlement the interest intervene, government does not the suit the public group, for the most the fact that grants Constitution com- should end. The part unaware of the settlement —while plete of the execution of the laws control group government join lobbies the interest control includes total dis- the Executive. This gives a one- settlement — prosecutorial cretion over allocation go along incentive to with whatever sided dynamic created resources. The private parties agreement have made. Congress has mandated that FCA—wherein accountability public lessened and law Thus is intervene, investigate, must the Executive private purposes, twisted to as Justice Scalia dismiss a suit that it does not want motion to Earth, described in Friends Inc. v. Laid pursued unconstitutionally interferes to see — Inc., 167, (TOC), law Envtl. Servs. 528 U.S. prosecu- Executive's allocation of its with the 693, (2000) L.Ed.2d 610 Furthermore, the amount of torial resources. (“FOE"): requires the DOJ to resources that the FCA insignifi- to review FCA suits is not allocate plaintiff pursuing A Clean Water Act civil note cant. See infra. penalties self-appointed acts as a mini-EPA. Where, case, plaintiff government’s 14. The brief confirms that there is a as is often association, agency relationship. is no significant national it has dis- choosing targets. enforcement cretion previously noted that “the 15. This court has reported is aware of a Once the association expect government does not that the relator violation, long for an in- it need not look govern with the will act first and foremost member, jured theory at least under the ex in mind.” United States ment's interests today. injury applies And once the Court Univ., 171 F.3d rel. Foulds v. Texas Tech chosen, goes target the suit forward Qui (5th Cir.1999). tam relators "are public meaningful without control. monetary primarily by prospects of motivated vastly dispro- availability penalties of civil Hughes public good.” reward rather than injury gives portionate to the citi- individual Schumer, rel. 520 U.S. Co. v. U.S. ex Aircraft plaintiffs bargaining power— zen massive 939, 949, 117 S.Ct. 138 L.Ed.2d 135 often to achieve settlements which is used course, en Of this concern about requiring support the defendant to environ- prosecutorial croachment on the Executive's projects plaintiffs' choosing. mental present only in tam actions discretion is private public fine diverted to a Thus is a government declines to inter in which the interest. Attorney inter When the General does vene. vene, initiating essentially the Executive is urging informer and there- action at the of an Moreover, may judicata, prevent the Executive it from suing dismissal.17 over tam action. If the those concerns at a freely settle later date when more objects government’s Finally, at- information is available. Ex- relator settle, must ob- ecutive has no to remove tempt the relator may approval, litigation tain court and the court from the under any circum- hearing it holds a approve only after and stances.19 “fair, adequate, the settlement is finds that B. Inapplicable Precedent. all and reasonable under the circum- stances.”18 one Supreme case has the Court allowed an encroachment on the Executive freely The Executive restrict anywhere near that countenanced participation relator’s in the Olson, FCA. In Morrison v. first the court action but first must show (1988), 101 L.Ed.2d 569 participation that the relator’s unrestricted upheld Court the constitutionality of the unduly delay with or the “would interfere independent provisions counsel of the Eth- case, prosecution Government’s (“EGA”). ics in Government Act The irrelevant, pur- repetitious, would be or for recognized Court that special the structur- 31 poses of harassment.” U.S.C. problems by al dealt with the EGA re- 3730(c)(2)(C). § can Nor the Executive quired some encroachment on the Execu- of litigated control the breadth the matter tive’s Take Care powers. Clause may a by the relator. relator make that, true, while sweeping allegations independent he is The counsel device was in- effectively litigate, unable to but which tended to address a narrow structural government, problem present nonetheless bind the via res conflict of interest —the Qui 3730(c)(2)(A). require- Constitutionality § 17. 31 U.S.C. orandum re: the Tam of Act, government per- ment that the obtain court Provisions the False Claims 13 Op. Legal mission to dismiss a tam suit raises seri- Off. Counsel questions regarding power the ous balance of 3730(c)(1) (providing § between the Executive and Judicial Branches. 19.See U.S.C. that intervenes, Corp., government See In re Int'l Bus. Machs. 687 F.2d if the the relator (2d Cir.1982) ("The right party district court’s "shall have the to as a to continue action, subject in the executive deci- involvement branch’s to the limitations set forth (2),” litigation might impinge paragraph permits siоn to abandon none which removal); 3730(c)(3) upon powers.”). (providing § the doctrine of id. that if questions implicated government deciding initially Such case, however, are not in this intervenes after so, potential because involve not to do not limit relator’s status prerogatives rights). pointed interference with Executive One has commentator relator, here, 3730(c)(3) by judiciary- plain reading ap § as out that pears dismissing to bar the from 3730(c)(2)(B). initially declining 18. Id. Gravitt v. Gen. Elec. a case if it intervenes after Co., (S.D.Ohio so, 1988), F.Supp. certainly illus- to do for dismissal would "lim rights person trates how the encroach initiat it[ ] status Blanch, Note, ing on the Executive’s control of settlements. the action.” See James T. There, accept govern- Constitutionality the court refused to the False Claims Act's settlement, Qui Provisions, lecturing ment’s J.L. & Pub. DOJ on the Tam 16 Harv. inadequacy investigation of its into the matter But see United States Policy Co., alleged complaint. Kelly Boeing relator’s See id. at ex rel. 9 F.3d 752 & out, however, (9th 1993) (reasoning preserve 1164. It turns n. Cir. that the fraud FCA, complained undercharge interpreted give of resulted in a net the Act should be later, government, years degree few similar of control over settling litigation litigation’s DOJ succeeded for the as if it had intervened at sum inception). initially rejected. Gravitt had court See Mem- when the Attorney General is called on to ^[4] once a counsel appointed, the counsel abide requires his Act wrongdoing criminal investigate unless it is Department policy Branch. in the Executive Justice colleagues close an do so. Notwithstand- “possible” counsel as independent accepting in- to some dealing with this the fact that the counsel is means of appropriate conflict, the Morrison Court and free from ex- degree “indeрendent” tra-branch congressional action extent supervision greater announced that when to a ecutive liti- the Executive’s in our potentially prosecutors, undermines other federal than function, constitutionality gative give test of the Act view these features retains the Executive Branch is whether Branch sufficient control over litigation “to “control” over sufficient to ensure that independent counsel per- is able to ensure that President perform able to his the President constitutionally assigned duties.” his form constitutionally assigned duties. Id. at needs court stressed edging the without a we have ranted” is committed independent counsel ney Executive with substantial decision not lieve that ed” sure he General counsel for satisfy Article II: Most preserved finds by General, that the laws are an retains the importantly, already “no reasonable independence, independent further specific request independent “good sufficient Executive control and the four features to request appointment concluded 2597. While acknowl- investigation cause,” power Attorney may ^[1] “faithfully to his unreview- counsel’s counsel. grounds the Morrison to remove by the Attor- be a ability to en- provides of the EGA appointed General’s Attorney is execut- special ^[2] to be- war- that the the No if may miss the action once the relator Morrison, relator, the FCA’s crucial feature ney preserved U.S.C. dismiss, showing suit becomes. single one of (emphasis As the 3730(c)(1),(3). Perhaps more simply General limit the § no matter how to the see id. 3730(c)(2)(C), panel opinion pointed added). Executive control is with a remove the the features of the EGA that has no relator’s tarn court, present If § hearing importantly, 3730(c)(2)(A), provisions. he makes the the participation, in the court has Attorney irresponsible on motion to relator, 108 S.Ct. 2597 may the to independent the the second The Attor- present out, not a remove a even dis- afforded General see id. proper see 31 may the missing: Attorney counsel statute is Act the gives able discretion. The thus all control over the decision General loses degree a of control over the the if the to initiate suit. Even whether investigation by initiate an power to independent counsel. ^[3] addition, Attorney General determines that there the fraud grounds” are “no reasonable independent jurisdiction action, judg- the relator override that counsel is with to reference defined General, The action Attorn,ey ment and initiate a lawsuit.20 submitted facts Circuit, independent rejecting prosecution an while an Arti- initiation of 20. The Ninth FCA, that, challenge admitted cle II tam relator.” United counsel than a EGA, "Attorney Co., ... Generali’s] under the Kelly Boeing F.3d States ex rel. request appoint- unreviewable discretion to Cir.1993). (9th It is difficult to overstate counsel, and therefore to initiate ment of control, importance of this which is miss- counsel,” "unqualified litigation by is an FCA, recognizes when one from independent built into the counsel control filed, been the Ex- once suit has controls "[c]learly, govern- provisions,” may exercise—most of which ecutive Branch greater authority prevent ment has to name, forward in the goes government’s how such a distinction can away do the Court’s that, under total control of the exhortation in self-interested Monison congressional when action relator, threatens to en- unaccountable publicly even if activities, croach on Executive the test of Attorney General has concluded that constitutionality is whether the Executive with a lawsuit is not proceeding merited or Branch retains sufficient “control” over the otherwise not in the United is States’s litigation “to ensure that the President is interests. able to perform his constitutionally as- The third and fourth features also are signed duties.” Id. at 108 S.Ct. 2597. conspicuously Attorney absent. The Gen- Certainly, different amounts of control eral has no control over the breadth of a may appropriate be depending on the role Indeed, relator’s suit. as I already have of the one litigating government’s case, noted, a relator may sweeping make alle- but an act of Congress that uses the magic gations effectively he is unable to words that person litigating “in the litigate, thereby government, bind the States,” name of the United rather than judicata, States,” via res to “as Finally, his failed suit. the United surely strip cannot relator, courts of their responsibility independent unlike ‍‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌​‌‌​​​‌‌​​​​​​​‌‌​‌‌​‌‌‌​​‌‌​‍coun- evaluate whether the sel, legislation allows for the Pres- need not adhere the rules and poli- ident to fulfill duty his to take care that cies the DOJ. the laws be faithfully executed. The majority two unconvincing makes majority’s why second stated reason arguments why as to improper Morrison is irrelevant this case ais apply analysis in Morrison to this case. mere distinction between facts of the It reasons: two cases. The majority points out that First, the assigns independent EGA independent counsel are granted criminal itself, counsel to act as the United States duties, prosecutorial whereas FCA relators in to contrast the FCA’s provi- “are simply civil majority The litigants.” sions, only which authorize the relator to notes that criminal prosecution is at the a bring lawsuit in the name of the Unit- “heart of the Executive’s constitutional Second, ed States.... in contrast to in- then, duty” more, without asserts that dependent counsel undertake who func- “the Morrison control panel test that the tions relevant to prosecution, majority a criminal used to evaluate the constitution- ality of the relators are of the simply litigants. provisions civil FCA simply dispositive not of the instant 594(a) (Citing (2000), § 28 U.S.C. expired case, ...” Although may different controls 599). by 28 U.S.C. be needed for the Executive to take care of point, As to its first majority the does the execution of in the laws criminal as explain not the difference between litigat- cases, opposed to civil in nothing the Su- ing “as the United opposed States” as to preme jurisprudence Court’s suggests that litigating “in the name of the United the Take Care apply Clause does not to Nor does majority explain States.” the civil cases.21 require approval court of some only degree, sort—are sim- difference in not in kind. The ply not major sufficient to counterbalance this majority limiting prin- articulates no rational power. encroachment on Executive ciple that constitutionality allows here but Congress that makes it unconstitutional for to Although majority 21. the makes much of the to, pass permitting say, a statute relators factual distinction that the FCA allows prosecute government claims for criminal for- suits, Supreme civil upheld whereas the Court feiture, fines, long part or for criminal so as the constitutionality prosecutions of criminal recovery assigned of the was to the relator. counsel, brought by independent the reason- Indeed, majority approval the the noted majority in this case makes this a terminate litigation, initiate notes, other Further, majority the as (without control approval), court litigation provisions found the control have circuits litigation, the pace of scope and in the a evaluat “as whole” in useful Morrison lawyer by the used procedures the a control the FCA “as constitutionality of ing the most The FCA’s the case. unfairly prosecuting attacks majority whole.”22 pow- the violations severe rigidly applying as panel opinion in Take Care embedded principles ers in deter test from Morrison four-factor unaccountable, fact that include the con Clause FCA withstands whether the mining charge put relators self-interested II. under Article scrutiny stitutional and that rights, vindicating government the FCA observing that actuality, after con- transparency and controls the control one single not a contains influ- place system are not found stitutional court that the Morrison mechanisms litigation. of such ence the outcome EGA, to conclude went on panel in the taking tarn “[e]ven FCA elements Finally, the focusing any of whole’ ‘as a were Executive control effective disable provi between particular differences in- special response not drafted statute, counsel independent sions and the sought that the EGA problems tra-branch en degree of greater tarn effects Rather, in Morrison.23 to correct prerogatives on Executive croachment much- broadly was drafted for FCA in Morrison.” upheld [EGA] than does being one of less-compelling purpose 196 F.3d Riley, fraud available to combat of tools number Although contractors. above, by government the most explained IAs have otherwise, brought suits implies majority fails in which the FCA ways crucial does in which by relators con- with sufficient the executive provide particularly are not even intervene allow the does not are that the FCA trol that, Riley, F.3d at 529: passing 23. See Fourth FCA, statement Circuit's posse of ad let "Congress has loose was intend- independent counsel device frauds deputies to uncover hoc prob- a narrow structural ed to address (quoting government” United against of interest when perceived conflict lem—the M.D. Tex. ex rel. Milam Univ. States on to investi- Attorney is called General (4th Ctr., 961 F.2d Anderson Cancer col- wrongdoing his close gate criminal 1992)). appropri been have Cir. Possees Branch. The leagues the Executive within West, depu were where ate in the Wild independent accepted Morrison Court Sher executive an officer—the tized dealing appropriate means of counsel as an forming Congress has no business iff—but conflict. The device with this intra-branch them now. unduly on exec- arguably does not encroach (citing ex majority United States states 22. very purpose is power, because its utive (9th Co., Boeing Kelly v. 9 F.3d rel. activity. investigate impermissible executive whole, 1993)) ... as "[l]aken Cir. Moreover, narrowly to achieve tailored degree of the Executive Branch FCA affords purpose: It encroaches on its is not dis qui tam relators that control over necessary pro- only to the extent limited degree of control the tinguishable from the interest, re- while against a conflict of tect Branch the Executive found Morrison Court taining control executive consistent independent counsels.” See exercises over objective.... & Kreindler ex rel. Kreindler also United States independent statute's counsel Given the Corp., Technologies 985 F.2d v. United tailoring, the objective special and narrow 1993) (2d challenge to (rejecting II Cir. Article forgiv- likely especially was Morrison Court FCA); Taxpayers Against ex rel. United States ing encroachment. of Executive Co., Elec. Fraud v. Gen. F.3d 1994) (same). (6th Cir. in collecting govern- useful monies for the Appointment Officers, of such inferior as ment.24 they think proper, in the President alone, Law, in the Courts of or in Heads III. Violations the Appointments Departments. Clause. Const, II, 2, cl. 2. art.

The Appointments Clause is a valid and noted, IAs have relators are not ap- independent ground affirming for the dis- pointed by any branch government, trict court’s That dismissal. clause man- rather appoint dates the Executive themselves. The majority gives short shrift to the Appointments nominate, shall and by and with the issue, Clause concluding that it is not vio- Senate, Advice and Consent of the shall lated, “qui tam relators are because Ambassadors, appoint public other Min- officers of the Consuls, major- United States.” The isters and Judges of the Su- however, Court, ity ignores, preme question and all log- other Officers States, ically follows Appointments United whose its conclusion that relators for, are provided are not herein otherwise not officers: whether non-officers Law; and which shall be established claims owned by the United Congress may but the by Law vest the States. only qui Because this case deals with those qui total tam recoveries since $3,962 government tam actions in which the qui does not billion has been recovered in tam intervene, majority’s government actions in which indicating joined, statistics (5% only recovered) $211 qui million effectiveness of all FCA tam total actions has been inapposite. recovered in majority cases in which the cites data show- government join. declined to If one qui that FCA excludes tam actions have resulted in year the anomalous suits in which recoveries more than a billion dollars as of government join does not only amount to September implicitly suggesting that qui of the total tam 1.47% recoveries. such information opin- should influence our might The above statistics lead one to be- constitutionality qui ion of the government lieve joins most alleged action at issue in this case. While the case, lawsuits. This is not the however. Of effectiveness of the FCA’s the 2520 tam cases that have been con- should not affect our decision as to their date, government joined cluded to has constitutionality, only statistics relevant to (22%) join 554 cases but has refused to this case would describe the effectiveness of 1,966 (78%). gov- cases Of the 554 cases the subset of tam actions—those in which the joined, money ernment has it has recovered government does not intervene. (77% judgment settlement or 425 times actions, DOJ data indicates that such rela- cases) its and has failed recovery to achieve a tive to govern- tam actions in which the (2% cases), only 11 times of its 112 cases intervene, ment does have not resulted in a active, inactive, remain 3 are and 3 are uncer- significant treasury. boon to the federal For 1,966 tain. Of the cases that the example, in the first nine months of join, only has refused to 100 have resulted in $1.2 recovered billion in cases in (5%), 1,451 recoveries while have been lost $913,957 only which it had intervened but in (74%); active, 258 cases remain 34 are inac- (less those in eight which it had not than tive, and 123 are uncertain. (.0077%) percent one hundredths of of the figures These show that the in cases which 2000). total tam recoveries in See Fried government gen- the declines to intervene are Johnson, Frank Harris Shriver & FCA Statis- Hence, erally majori- the meritless cases. the tics, at http://www.ffhsj.com/quitam/fcas- ty’s implicit suggestion that a determination (last 19, 2000) tats.htm (post- modified Dec. unconstitutionality in this limited case modification, ing, without data received from would result in the disablement of an effective through requests the DOJ under the Freedom utterly sup- law enforcement tool is without Act). taking figures of Information port. Even the

768 Buckley the within brings them plain it States makes precedent Cоurt Supreme that further note Defendants standard.” no. question this answer to that the intervene, does not government the when held, Buckley, first in has twice The Court for responsibility primary has the relator 659, 612, L.Ed.2d 1, 46 96 S.Ct. 424 U.S. reason, in Thus, defendants litigation. the Morrison, n. at 671 487 U.S. then and does not government in which the cases 2597, litigating 12, persons that 108 S.Ct. actions tarn intervene, litigation the are officers States of the United behalf Appointments the violates by relators Buckley, States. of the United exer- cases relators such because Clause Election Cam the Federal that Court held authority to pursuant “significant cise 1971, which authorized Act of paign States,” Buckley, 424 of the United laws of the Senate tempore pro President 612, not 126, are 96 at S.Ct. U.S. four of House to select of the Speaker United officers of the appointed properly Federal of the voting members the six States. Commission, Ap violated Election reason- responds with The at Buckley, Clause. pointments arguing majority’s by ing similar adopted 140, The Court 113, 96 S.Ct. only applies Clause Appointments that “any exer appointee that rule general appointees to federal authority pursuant to significant cising Buckley deals the decision “since an ‘Officer States laws of the United proper- officials can functions federal what must, therefore, be States’ the United out, nothing about us carry tells ly prescribed in the manner appointed persons private status constitutional ” 126, 2, Id. 2, at [Article II].... cl. argument This qui tarn relators.” such as Court ob Buckley 612.25 96 S.Ct. reasoning, this too much. Under proves the commis assigned Act served that must do Congress or President all that conducting responsibility “primary sion Ap- the strictures of to circumvent of the United litigation in the courts civil authority delegate is to Clause pointments rights” and vindicating public States for officiаlly been who has to someone discharged functions be “[s]uch any office. to federal appointed ‘Officers by persons who are Appointments Defendants’ view ” 140, 612 Id. 96 S.Ct. United States.’ fidelity to the Constitu- more Clause has added). (emphasis Appointments argue that They tion. authority improperly argue power “[t]he against Defendants protects Clause initiate, conduct, employees federal whether to granted, relators to torn ob- defendants citizens.26 private of the United litigation on behalf terminate States, it articu- Because power appoint. U.S. v. United 520 25. See Edmond also Appointments limiting principle, lates 137 L.Ed.2d States, Execu- always serve the does not (1997); U.S. Clause United Weiss (1994); 169-70, example, the Clause L.Ed.2d 1 interests. For S.Ct. tive's 868, 881, Comm’r, Congress grant appointment Freytag v. forbids Ex- inappropriate L.Ed.2d 764 members Congress nor the Neither Branch. ecutive way: put Supreme Court it this has 26. agree to waive structural can of the Executive protection. assent "The embodied in principles The structural contrary provision a bill which contains speak only, or Appointments Clause do it from does not shield to the Constitution prerogatives primarily, of Executive even interests The structural judicial review.” simply located Article because are Appointments Clause protected by the prevents Con- Clause Appointments II. The any Government branch of those of one freely; not power too gress dispensing from Republic. of the entire recipients of but eligible the universe limits that it serve does not matter whether rela- It is because relators are not litigating properly tors are more described as offi- for themselves that approval cers who have not properly appointed been the party they are representing gov- —the or as non-officers therefore are who ernment —is needed for settlements. That qualified to sue on behalf of the govern- persons carrying out these functions ment. Either way, Appointments on behalf of government are properly Clause is violated when relator sues appointed very is the purpose and com- government without intervention. mand of Appointments Clause. government The alternatively attempts Finally, government attempts to ar- to show that relators do not need gue to be that neither the Appointments Clause appointed, because are litigating only nor the Take Care Clause is by violated for argument themselves. This also FCA, is because the Constitution allows unavailing. holding in Agen- Vermont a private person appointed by the Ex- cy Natural Resources United States ecutive VII, to sue under like statutes title Stevens, ex rel. 529 U.S. 120 S.Ct. which suits are said to vindicate public (2000), 146 L.Ed.2d relators In making interests. argument, this only partial assignees plainly means government erroneously type conflates the that relators also partly sue on behalf of of claim pursued suit, in a title VII the government. which a private citizen sues to vindicate a personal injury and incidentally serves a government forth puts another al- public purpose type with the of claim pur- argument ternative for why Appoint- sued FCA, relator suit under the ments is not Clause violated the FCA. which a private person solely sues to vindi- It same argument made cate an injury government and is majority in contending that the FCA does rewarded with a share of the recovery. not violate the Take Care Clause—that relators litigate government “for” the The collapsing private inju- and public government. not “as” the This semantic ry explicit in the government’s reasoning distinction unavailing is аs in the context would lead ultimate conclusion that of the Appointments Clause as it was in all citizens must be allowed to sue to en- that of the Take Clause. Care laws, law, all force every because even in “private” core law government

Neither the areas of tort and majori- nor the contract, ty can any cites be said serve authority holding purpose litigat- sovereign ie., regulate is different individu- from — litigating through as the als’ conduct government, Although law. such a indeed system there is no purposes interesting difference for be contemplate, case. No matter how one it has not accepted juris- describes what been American does, Instead, relator prudence. the fact remains that public/private he dis- States, tinction, sues under the flawed, laws of the United however has been main- based on claims key owned the United tained aas determinant of what States and to public injury. vindicate This action and when such action is alia, is made by, obvious inter permissible. the fact government’s title approved fails, settlements cannot be with- VII analogy and the FCA’s violation government’s out the acquiescence. of the Appointments Clause remains. Freytag, (1983)). 111 S.Ct. 77 L.Ed.2d 317 Chadha, (quoting INS v. 942 n. Kennedy, Justice perhaps Thomas the Consti- Open IV. Stevens Left the consti as to reservations to have Qui seem tam Suits tutionality of Article under qui tam actions tutionality of II. Article Under Earth, v. Laid Inc. the II. Friends In that relators know, held we Stevens As Inc., (TOC), 528 U.S. Envtl. Servs. law standing to sue suits have in tam qui (2000) 693, L.Ed.2d 610 167, 120 S.Ct. holding, the From this the FCA. under just four (“FOE"), decided was which it is that “persuaded claims be majority to Stevens, Scalia Justices before months history same inescapable logically (like the case Thomas, noting while that III Article on the was conclusive which issues,29 Stevens) II not raise Article did similarly conclu ... is in Stevens question рoten some described nevertheless question Article II to the respect sive with that can loss of control troubling tially this logical If this statute.”27 concerning brought without from citizen suits arise true, to have is seems inescapability intervention: Supreme the majority of by a been missed pursue civil citizens to By permitting Instead, majority the six-member Court. Federal Trea- payable penalties any view disclaimed expressly in Stevens a mecha- not sury, provide the does Act challenges, II stat to Article regard any tradi- in relief for individual nism neither Article was that II. explicitly sense, private to over but turns nor tional parties, the Court to presented enforcing the the function of the Court citizens that jurisdictional issue rose to sponte.28 sua law.... resolve required to was

Moreover, majority that sure, may the fact the EPA foreclose To be that it was point out pains took bringing Stevens suit. by itself citizen suit constitutionality of deciding to avoid authorities public allows This strong suggests II under Article tam suits only by accepting enforcement private not think this issue did ly the Court that to when enforcement as private direction history. easily decided no less be undertaken —which should Elected offi- constitutionally bizarre. Scalia, author of fact, Justice dis- of their entirely deprived Stevens, are cials and Justice majority opinion II.”); Lujan Wild- v. see also only dissent in Ste- cle majority cites Defenders of 27. 2130, 576-78, "[ijndeed, view, 112 S.Ct. saying, life, support vens to its 351, (1992). history implic- dissent alone in Stevens noted that 119 L.Ed.2d dissent " 'introduc[ing] ques- question of whether [this resolves us for itly attacks ... violate Article II question, FCA how- sponte.’ We raise the sua tion] ever, it is not issue clear make Stevens, n. 120 S.Ct. 529 U.S. at 778 28. See pro- only the dissent that this case. It is ("[W]e question express no view on answer.”). an to volunteer ceeds II, in Article violate suits whether § 2 Clause of Appointments particular FOE, U.S. at 29.See § 3. Petitioner 'Take Care’ Clause of and the (“Article commits it Constitution II of the challenge the tam mechanism does be 'take Laws Care President provisions, nor is those either of under executed,’ specific provides faithfully provi- those validity suits under exercising sig- persons all which methods we re- issue must jurisdictional sions appointed. to be executive nificant Steel Co. here.” See Environment, Citizens solve concurrence correct- As Justice KENNEDY’S 102 n. Better observes, conformity of question ly (1998) ("[0]ur 140 L.Ed.2d has not been II legislation with Article though it standing jurisprudence, ... Court, I, do not address like the argued impact Presidential an sometimes have —and J., it.”) (Scalia, dissenting). and not Arti- Article III powers, derives from to decide a given tionality cretion violation of citizen suits under Article II. object all, should not be the of suit at or The majority’s arguments that Stevens that the enforcement decision should be “essentially resolves the issue before this postponed. See [33 court” U.S.C.] is therefore well off the mark. 1365(b)(1)(A) (providing that citizen question, then, obvious is how the plaintiff days need wait after majority in Stevens could have found that notice of the giving gov- violation to the history is so important in determining Ar- action). ernment proceeding before ticle III standing to sue but perhaps less predictable This is the and inevitable important in determining constitutionality consequence of the Court’s allowing the under Article Fortunately, II. Stevens de- public use of private remedies finitively answers question: this wrongs. We are confirmed in this conclusion [re- 210, 120 (Scalia, J., Id. at S.Ct. 693 dissent garding standing] by the long tradition (citations omitted).30 ing) England actions in and the Further, FOE, Kennedy Justice wrote American That history Colonies. is a concurring opinion explicitly recognizing particularly relevant the constitution- thаt Article II challenges raise “[d]ifficult al standing since, inquiry as we have questions” and fundamental which elsewhere, “are said Article Ill’s restriction best reserved for a later case.”31 judicial power to “Cases” and third member of the majority Stevens ap- “Controversies” is properly understood pears to harbor doubts about constitu- to mean “cases and controversies of the observation, See also id. at 209 n. case. With this join opin- I (Scalia, J., ("The dissenting) points Court out ion of the Court. FOE, (Kenne- is allowed to intervene in 528 U.S. at 120 S.Ct. 693 suit, J., a citizen power 'bring dy, concurring). Kennedy’s Justice con- Government’s views to the attention of the currence seems to clarify have been made to court,’ meager power passing is that a substitute for the remark made in a footnote prosecution majority opinion decide whether will occur. in FOE did In- not decide deed, according the issue constitutionality of Article Executive II Chief citi- zen suits. ability majority United States the The footnote to the opin- to intervene does no Q. ion states that place par than more him on a with John Public, charge dissent’s broader who can that citizen gov- intervene—whether the penalties suits for civil carry under the Act ernment likes or not—when the United suit.”) "grave implications gover- for democratic States files nance" seems to Certainly us overdrawn. the federal Executive Branch does not Kennedy 31. Justice wrote: share the dissent's view that such suits dis- Difficult questions and fundamental are sipate authority its to enforce the law. In raised when we ask whether exactions of fact, Department of Justice has en- public by private litigants, fines and the outset, dorsed this citizen suit from the sub- delegation power might which mitting support amicus briefs in of FOE in authorization, be inferable from the Court, Appeals, Distriсt the Court of permissible responsibilities in view the noted, and this Court. have already As we committed to Executive Article II of the Federal Government retains the the Constitution of the United States. The by undertaking to foreclose a citizen suit its questions presented petition in the for cer- own action. And if Executive Branch tiorari did not identify these issues with suit, opposes particular citizen the statute particularity; Ap- neither Court of allows the Administrator of the EPA to "in- peals deciding parties the case nor the right" tervene as a bring matter briefing their before spe- this Court devoted Government's views to the attention of ihe subject. cific attention to my view court. FOE, these matters are best reserved for a later 528 U.S. at 188 n. 120 S.Ct. 693. and accord- assignee, only partial to, re- tor traditionally amenable sort claim the relator part of the ingly, the process.” by, judicial solved litigating for himself he is for litigating not 1858 Stevens, at 529 U.S. Therefore, rather than government. the added). words, the In other (emphasis in Ste- reasoning the majority, the helping that inquiry dictates standing nature of the by position the defendants’ supports vens prac- to historical paid be attention special the though even showing that need not be extreme deference tice. Such partial the relator sufficient over to signs contrast, of the context within by given, Arti- qualify litigation in the interest challenges. Article II that interest majority standing, the cle III a Furthermore, there existed in Stevens still therefore over—and signed is not that the FCA of interpretation reasonable prose- be by the owned —must III. Article of requirements the satisfied States of the United by an officer cuted history long of Court, by the informed The Clause, and must Appointments the under as actions, the interpreted FCA qui managed by the faithfully be of assignee partial a mаking relator the Care Clause. the Take under so, doing the claim. government’s the “the law that established Court followed Controlling. History Is Not V. standing to assert a claim has assignee of if that even Ste- majority believes by assign- the injury in fact suffered issue, long not does settle vens end, history merely in the or.” Id. ” some- tam statutes “qui use of historical interpretation an helped the Court choose majority them. The how constitutionalizes plainly constitution- that was of the statute dissent Stevens Stevens’s quotes Justice al. evidence, together [historical] “[t]hat FCA, by the II issues raised The Article prosecutions private evidence that however, easily disposed of were not so ... century 19th commonplace were ad- majority did thus the history, and II Article to resolve the sufficient is ... con- Court’s dress them Stevens. Stevens, (quoting ...” question assign- a partial relator is clusion that 1858) (Stevens, J., dissent- 801, 120 S.Ct. did into the courtroom but allowed her ee back Long dating use—even ing).32 issued of the constitutional not take care prac- insulate Congress earliest —cannot of an unaccountable by the fact raised howev- challenge, tice from constitutional on behalf litigating of private citizen’s panel original er, judges three all as can be no mistake there government —and agreed.33 Stevens, that, a relator is wake of Further, action although taken government, be- behalf of the litigating on to as been looked Congress has real- earliest explicitly states cause Stevens Chambers, [FCA]”). 463 Marsh v. See also majority's deference 32. Under extreme 783, 790, 77 L.Ed.2d S.Ct. history stat- U.S. of practice, historical alone, (1983) prac- (“Standing historical of crimi- authorizing private utes enforcement contemporary [of violations justify enough to allow cannot tice nal would be statutes Constitution.]”); Comm'n v. Tax suits on behalf criminal Walz relators of York, majority government, City even New which (“It (1970) obviously acknowledges 25 L.Ed.2d is unconstitutional. pro- acquires a vested that no one correct right in Constitution (Stewart, tected violation See, Riley, F.3d at 543 e.g., use, span covers time long even ("I when J., dissenting) agree that histo- heartily [] pre- indeed existence and entire national our 'by the constitution- ry does itself validate it.”). dates ality tam relator interpretation widely evidence of the founders’ divergent interpretations of the Constitution, first meaning courts such laws. Defendants assert tam statutes passed logically given weight have less three of the to acts by the first passed quickly Congress permitted and without deliberation private as citizen to sue on government’s constitutionality.34 to their A careful behalf re when he had not personal suffered tam laws leads injury, history view of the they characterize the early rest of the one to conclude that should be classi qui tam “simple statutes as informer laws” fied among those statutes that have been merely that awarded informers a share passed expediency more from than from any recovery by secured government. analysis; reasoned constitutional and fur Conversely, government quotes United ther, history provides that no indication of Hess, States ex rel. Marcus v. general what were the opinions founders’ 537, 4, 379, 541 n. 63 S.Ct. 87 L.Ed. 443 qui tam statutes, of constitutionality of (1943), which states: “Statutes providing nor particular what would have been their for a reward to informers which do not opinion unappoint- of this case which an specifically either authorize or forbid the ed, unaccountable citizen gov sues informer to institute the action are con- government ernment’s behalf without par (citation strued to authorize him to sue” ticipation. omitted). From government this the as- government disagrees, arguing that sumes that all twenty of early qui tam the original qtti tam statutes a number of statutes must have allowed citizens to sue were similar to the FCA. Defendants con- on its behalf. early qui tam statutes tend that these Although the precise contours of the quite were different from the modern early qui tam statutes are difficult to dis- reasons, For FCA. two both sides can tinguish, the defendants’ interpretation of qui tam stat- hay make from the earliest them is more accurate than govern- is the First, utes. specify some do not whether ment’s. if Even the government is correct private suit; allow a bring citizen to in stating qui tam statutes that early ” second, “qui tam has been the term were silent on the issue of enforcement statutes, variety used describe a wide of suits, allowed citizen it appears still ranging from giving those rewards to in- early tam these required statutes formers to medieval English statutes al- citizen inju- to have suffered private some lowing private citizens to prosecute crimi- ry before could he sue on behalf of the keep portion nals and of the forfeiture. FCA, which al- —unlike ambiguity This coverage and the broad solely lows suit on injury based to the of historical qui tam statutes have government.35 allowed example, holding 34. For appointing part tice become of the "ha[d] fabric of our 792, paid society.” chaplains open legislative Id. at proceedings 3330. Clause, does not violate the Establishment Many early qui tam statutes allowed Supreme Court reviewed the Framers' exten- keep part recovery gotten by citizens to regarding practice's sive debates constitu- informing, as a reward for tionality and drew a distinction between ac- involved in which the cases citizen had suf- carefully tions considered the Framers and 31, private injury. July fered a Sеe Act of those thoughtlessly, long “taken force of 1789, 5, 38, 29, 48; § Sept. ch. 1 Stat. Act of regard tradition and without to the [constitu- 1, 1789, 11, 21, 55, 60; § ch. 1 Stat. Act of Marsh, 791, problems.” tional] 463 U.S. at 69, 145, (customs Aug. § 1 Stat. 103 S.Ct. 3330. The Court also noted that providing and maritime laws for a share unambiguous “the history and unbroken informers); 2, 1789, recovery Sept. Act of years” more than 200 prac- indicated that the (penalties ch. 1 Stat. levied fraud com- adequately monitor could not that Con- Moreover, undisputed contractors. by government mitted use abandoned the gress largely Executive led of a weak exigencies century. in the nineteenth tam statutes pass a number Congress to enacted fact, all of the acts. repealed. Congress have been the First the FCA likewise The first version Note, Development History See exi- great in another ‍‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌​‌‌​​​‌‌​​​​​​​‌‌​‌‌​‌‌‌​​‌‌​‍time passed was L.Q. tam, 97-101. Qui U. 1972 Wash. Again, the Civil War. gency during— seven enacted Congresses Later monitor and unable to Executive was after statutes,36 passed and none was oc- by defense contractors fraud that re- qui tam statutes 1871. The few in which country in war-torn curring to sue private parties allow main do not enor- multiplied had military requisitions belonging interest proprietary on a based the qui mously. Congress resurrected involve rela- those acts government; attempt grapple in an tam suit essentially and are now tively arcane areas Thus, the was enact- problem. FCA dormant. that did not Congress desperate ed engage or inclination have the time qui tam the time the first Finally, at constitutionality. of discussion reasoned was in its passed, executive acts were DOJ, anything the nu- Today Executive is infancy. was no There may still be bounty system A weak.37 the Executive arm of gatory prosecutorial 321, 4, 1909, 426; ch. of Mar. Stat. Act for vio- against Treasury Department officials 1140; 1138, (3) 254-57, office); ofAct §§ Stat. 35 to their prоhibitions attached lation of 11, 20, 527, 6, 1797, 8, 1, § 532 3, 1791, July Stat. ch. 1 § 1 Stat. 215 ch. Act of March pen- of half gov- (providing informer received (same). authorized other statutes Two paper products— bring to duties on alties related census-takers appointed ernment sue); could whether informer uncertain uncooperative citizens and against suits 17, 5, 28, 1799, § 1 ch. adopted by of Feb. of Act any See Act fines obtained. retain half of 622, (same 101, 103; involving 6, penalties 1, 1790, 2, for Stat. 623 § Stat. ch. 1 March 3, duties); (4) May 25, 1, Act of 5, 1790, altering stamp § 1 Stat. 129. July ch. Act of 189, 1802, 4, 48, 29, 29, (providing 31, 1789, 5, § 2 Stat. 191 ch. § Stat. 45 July ch. 1 Act of govern- prosecute on could against individual (permitting recovery officials customs employment of other than behalf for ment’s display a of fees had failed to table who service); (5) 35, 55, 4, 1790, postal Act duties); person’’ in § 1 "free white Aug. of ch. Act 292, 45, 11, 5, 1861, 20, 1790, § 12 Stat. 145, (same); Aug. ch. July of Act Stat. 173 of could sue 29, 1, (providing that individual (allowing recovery 296-97 § Stat. 131 ch. 1 oath, taking acting import without to contract assessor against ships’ masters who failed 8, fine); (6) July 131, of 4, keep Act crew); (permit- half § 133 id. 1 Stat. 39, 198, 1870, 230, (provid- § Stat. 203 16 harboring ch. recovery against persons runa- ting government’s sue seamen). statutory ing that individual could on way Two other Indians); contracting with parties See Act behalf unlawful permitted only injured to sue. 1872, 177, 21, 124, 1790, 15, 2, 6, May ch. 31, by Act of reenacted §§ 1 Stat. May ch. 136, 3, Congress’s § 137. The First publishers to 17 Stat. (allowing 125-26 authors and trading with Indi- violators). regarding unlawful copyright statute recover from 1, 1793, Mar. Act ans was also reenacted. 7, 25, 20, 1792, (l) § ch. 36. See Act of Feb. 331; 19, 329, 19, 12, May § Act of 1 Stat. ch. 232, (providing could that informer Stat. 474; 18, 469, 1796, 30, § Act of 1 Stat. ch. postal statute and penalties under sue for 139, 145; 13, 18, 30, 1802, § Stat. ch. Mar. 1845, 43, 3, hall); ch. keep Mar. reenacted 161, 27, 30, 1834, § 4 Stat. ch. of June Act 22, 17, 732, 738; (2) § of Mar. Act Stat. 729, 733-34. 2, 4, 347, 1794, 11, (provid- §§ 1 Stat. ch. de- executive DOJ now exists as an govern- 37. The ing that individual could 120,000 employees more than partment with trading); for slave reenacted ment's behalf $21.5 26, 1804, budget approximately § and an annual 2 Stat. ch. Act of Mar. Report 1 2, 1807, Annual 286; See DOJ billion. ch. of Mar. Act fraud, needed to root out some but there is America, UNITED

no STATES of deputize private need citizens to Plaintiff-Appellee, prosecute the claims of the United States. tarn statutes does history prove particularly useful in determin- Wayne BURBRIDGE, also known constitutionality of the FCA in as Cabral, Robert Edward cases in which the does not Defendant-Appellant. intervene, because there is no evidence of No. 00-50006.

an history extensive of statutes like the FCA that allow a citizen to sue on the United States Appeals, Court of government’s govern- behalf without Fifth Circuit. being suit, ment’s involved and be- May tam statutes were cause adopted in exigency times consider- without

ation powers issues.38 Be-

cause the FCA violates the Take Care

Clause, Clause, the Appointments and sep- powers

aration of I principles, respectfully

dissent. Further, separation a realistic view Today, giving suits to relators en- does powers recognizes change that as times because, croach on Executive more evolves, government the branches’ relative prosecutorial power with the full DOJ power vis a vis each other changes as well. it, behind bring the Executive could easily Thus, when the FCA was first enacted in Therefore, these suits if it wanted to. cases 1863, it did not encroach as much this, such as in which the has Executive, in that it away did not take work intervene, likely declined to it is that that that instead, doing; otherwise could be resources, decision is not a result of limited prosecutions it allowed fraud fea- but instead because the de- has sors whom the Executive could otherwise pursue cided for some reason that pursued. have the encroachment on inappropriate. claim is To encroach on this today, Executive was less than it be- prosecutorial greater discretion now is thus a cause the Executive now exists as a robust powers principles violation that could branch the claims be than was historic use of the FCA. given to relators the FCA.

Case Details

Case Name: Riley v. St. Luke's Episcopal Hospital

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 16, 1999

Citation: 252 F.3d 749

Docket Number: 97-20948

Court Abbreviation: 5th Cir.