United States v. L-3 Communications EOTech, Inc.

17-0621
USA v. L-3 Communications EOTech, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

------

August Term, 2017

(Argued: January 18, 2018 Decided: April 4, 2019)

Docket No. 17-0621

_________________________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

- v. -

L-3 COMMUNICATIONS EOTECH, INC., L-3
COMMUNICATIONS CORPORATION, PAUL MANGANO,

Defendants.

MILTON DaSILVA,

Movant-Appellant.*
_________________________________________________________

Before: KATZMANN, Chief Judge, KEARSE and POOLER, Circuit Judges.

* The Clerk of Court is directed to amend the official caption to conform with
the above.
 Appeal from an order of the United States District Court for the Southern

District of New York, Richard J. Sullivan, then-District Judge, denying nonparty-

movant's motion for a declaration that he is entitled to a share of the $25.6 million

received by the United States in the settlement of its action against the defendants

under the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq., brought after movant's

voluntary dismissal of a qui tam action, see id. § 3730(b), he had filed against two of the

defendants. The district court denied the motion on the ground that the FCA does

not entitle a private person to share in a recovery obtained by the government

through its pursuit of an "alternate remedy," see id. § 3730(c)(5), in the absence of an

existing qui tam action. On appeal, movant argues principally that the court's ruling

conflicts with the language, purpose, and legislative history of the FCA. He also

contends that the dismissal of his qui tam action was in fact not voluntary but rather

was coerced by the government. We conclude that movant presented no viable basis

for claiming coercion and that the district court correctly ruled that he was not

entitled to share in the government's recovery in light of his prior voluntary dismissal

of his qui tam action. See United States v. L-3 Communications EOTech, Inc., 232

F.Supp.3d 583 (2017).

Affirmed.

2
 JOSEPH N. CORDARO, Assistant United
States Attorney, New York, New York
(Joon H. Kim, Acting United States
Attorney for the Southern District of
New York, Christopher Connolly,
Assistant United States Attorney, New
York, New York, on the brief), for
Plaintiff-Appellee.

DANIEL W. WEININGER, Southfield,
Michigan, (Keith L. Altman, Excolo
Law, Southfield, Michigan, on the brief),
for Movant-Appellant.

KEARSE, Circuit Judge:

Movant Milton DaSilva appeals from an order of the United States

District Court for the Southern District of New York, Richard J. Sullivan, then-District

Judge, denying his motion for a declaration that, under the False Claims Act (or

"FCA"), 31 U.S.C. § 3729 et seq.--and in particular under § 3730(c)(5)--he is entitled to

a share of the $25.6 million received by the United States in settlement of the present

action brought by the government under the FCA against defendants L-3

Communications EOTech, Inc., L-3 Communications Corporation (collectively

"EOTech"), and Paul Mangano. The district court denied the motion on the ground

that, although DaSilva had brought a qui tam action against EOTech, he voluntarily

3
dismissed that action long prior to the government's initiation of its own suit, and that

given the absence of an ongoing qui tam action he had no entitlement under

§ 3730(c)(5) to a share of the government's recovery. On appeal, DaSilva contends

principally that the court's ruling conflicts with the language, purpose, and legislative

history of the FCA. He also argues that the court should not have viewed his

dismissal of the qui tam action as voluntary because his attorneys contended that the

dismissal was coerced by the government. We conclude for the reasons that follow

that DaSilva presented no viable basis for claiming coercion and that the district court

correctly ruled that he was not entitled to share in the government's recovery in light

of his voluntary dismissal of his qui tam action.

I. BACKGROUND

The False Claims Act, the most relevant provisions of which are set out

in greater detail in Part II below,

establishes a scheme that permits either the Attorney General,
§ 3730(a), or a private party, § 3730(b), to initiate a civil action
alleging fraud on the Government. A private enforcement action
under the FCA is called a qui tam action, with the private party
referred to as the "relator." . . . . When a relator initiates such an

4
 action, the United States is given 60 days to review the claim and
decide whether it will "elect to intervene and proceed with the
action," §§ 3730(b)(2), (b)(4) . . . .

If the United States intervenes, the relator has "the right to
continue as a party to the action," but the United States acquires
the "primary responsibility for prosecuting the action."
§ 3730(c)(1). If the United States declines to intervene, the relator
retains "the right to conduct the action." § 3730(c)(3).

United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 932 (2009); see also

Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1

(2000) ("Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso

in hac parte sequitur, which means 'who pursues this action on our Lord the King's

behalf as well as his own.'").

To incentivize private persons to uncover, report, and prosecute FCA

claims for the benefit of the United States, see, e.g., United States ex rel. Ladas v. Exelis,

Inc., 824 F.3d 16, 23 (2d Cir. 2016); United States ex rel. Dick v. Long Island Lighting Co.,

912 F.2d 13, 18 (2d Cir. 1990), the FCA provides that if a qui tam action is successful,

the relator will generally be entitled to receive a portion of the amount recovered

from the defendants, see 31 U.S.C. §§ 3730(d)(1)-(2) (typically 15-30% of the proceeds,

depending in part on whether the government has intervened and taken over

prosecution of the action, or instead has declined to intervene and left prosecution to

the relator).

5
 The record as to the events leading to this appeal shows the following.

A. Events Surrounding DaSilva's 2014 Qui Tam Action

DaSilva was employed at EOTech as a quality control engineer from mid-

May to late June 2013. On August 13, 2013, through attorneys then representing him

in anticipation of filing a qui tam action against EOTech, DaSilva submitted to the

United States Attorney's Office for the Southern District of New York information

alleging EOTech's manufacture and knowing sale to the government of defective

holographic firearm sights, in violation of the FCA.

On August 22, 2013, DaSilva was convicted in a Michigan state court of

criminal conduct that both sides agree was unrelated to the alleged FCA violations

by EOTech. DaSilva was scheduled to be sentenced on September 25, 2013; however,

he did not appear for sentencing, having fled to Brazil.

Beginning in mid-January 2014, Solomon M. Radner, a Michigan attorney

representing DaSilva in his criminal proceeding, had ongoing communications with

an Assistant United States Attorney ("AUSA") with regard to DaSilva's allegations

against EOTech. Radner disclosed DaSilva's fugitive status to the AUSA, who

"responded that she had to first seek permission from her supervisors before speaking

6
to DaSilva because of his fugitive status." (Affidavit of Solomon M. Radner dated

April 14, 2016 ("Radner Aff."), ¶ 9.) After the AUSA received such permission,

Radner sent DaSilva's materials to the AUSA, and facilitated, inter alia, telephone

conferences between or among DaSilva, the AUSA, and other government officials.

In April 2014, DaSilva filed a qui tam complaint--under seal and in camera,

as required by 31 U.S.C. § 3730(b)(2)--in the United States District Court for the

Southern District of New York, represented by attorneys in New York and Florida

("qui tam counsel"). The complaint alleged, inter alia, that DaSilva was a resident of

Michigan; it made no mention of his fugitive status. The next business day, the

government sent Radner an email requesting a conference to discuss, inter alia, the

reason for characterizing DaSilva as a resident of Michigan, when he was known to

have fled the United States, and the propriety of having claims on behalf of the

United States prosecuted by a fugitive. (See Radner Aff. ¶ 28.)

DaSilva's qui tam action was assigned to District Judge Alison Nathan.

On July 8, 2014, the court issued an order stating principally as follows:

[T]he Government represents (among other things) that relator
plaintiff Milton DaSilva is currently wanted by Michigan
authorities after fleeing to Brazil prior to sentencing for certain
crimes he was convicted of in 2013. The Government indicates that
counsel for Mr. DaSilva have stated their intention to withdraw and

7
 voluntarily dismiss this action if Mr. DaSilva did not surrender by June
23, 2014.

Given that that date has now passed, counsel for Mr.
DaSilva are hereby instructed to submit a status letter by July 18,
2014 indicating whether Mr. DaSilva remains a fugitive and, if so,
whether and when they plan to withdraw and dismiss this action.
If counsel do not submit a letter by July 18, the Court will dismiss
this case.

District Court Order dated July 8, 2014 ("July 2014 Order") (emphasis added).

Following entry of this order, both DaSilva's qui tam counsel and the

government made submissions to the district court. DaSilva's attorneys

requested that the Court not dismiss this case on the basis of
DaSilva's fugitive status despite their earlier representation to the
Government that they would voluntarily withdraw the complaint
if DaSilva did not surrender to Michigan authorities by June 23,
2014.

District Court Order dated August 14, 2014 ("August 2014 Order"). The government

responded and reiterated its concern as to the propriety of having the rights of the

United States represented by a fugitive. It had cited to DaSilva's attorneys a Michigan

bar governance principle that stated, "[a] lawyer may not aid or abet a client who has

chosen independently to become a fugitive from justice. The lawyer may not represent

the client in collateral or unrelated matters while the lawyer knows the client remains a

fugitive," Mich. Ethics Op. RI-160 (Apr. 14, 1993) ("Mich. Ethics Op. RI-160" or

8
"Michigan Ethics Opinion") (emphasis added). The government indicated to the court

"that it would move to dismiss if qui tam counsel refused to dismiss their complaint

voluntarily." August 2014 Order.

The court ordered that, "[s]ince qui tam counsel have neither withdrawn

their complaint nor indicated that DaSilva has surrendered, . . . the Government may

move to dismiss the complaint by August 31, 2014." Id. Before the government could

so move, however, DaSilva's qui tam counsel made a motion on August 19, 2014,

"request[ing] that th[e] action be voluntarily dismissed without prejudice . . . .

pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure." (Relator's

Request For Voluntary Dismissal Without Prejudice Pursuant to Federal Rule of Civil

Procedure 41(a)(1)(A)(i) ("DaSilva Voluntary Dismissal Request") at 1.)

DaSilva's attorneys represented that the government had stated it would

inform the court of its consent to the voluntary dismissal, and the government

promptly so notified the court. On September 3, the court granted DaSilva's request:

In light of Relator Milton DaSilva's request on August 19,
2014 that this action be voluntarily dismissed, and the United
States's consent to voluntary dismissal on August 20, 2014, this
case is dismissed without prejudice. The case shall remain under
seal.

District Court Order dated September 3, 2014 ("September 2014 Order").

9
 There were no further qui tam proceedings by DaSilva.

B. The Government's FCA Action

More than 14 months after DaSilva's voluntary dismissal, the

government on November 24, 2015, commenced its own False Claims Act lawsuit

pursuant to 31 U.S.C. § 3730(a)--the present action--against EOTech and Mangano.

This action was assigned to then-District Judge Sullivan. On the following day, with

the approval of the court, the parties settled the action, with defendants agreeing,

inter alia, that EOTech would pay the government $25.6 million.

On April 14, 2016, DaSilva filed--in the present action, i.e., the

government's § 3730(a) action that had been settled on November 25, 2015--the

motion giving rise to this appeal. He stated that he had "unquestionably filed a valid

qui tam lawsuit that was . . . dismissed without prejudice" "only after intense pressure

from the government." (DaSilva's Motion To Be Declared Eligible for Share of

Government's Recovery Under the False Claims Act ("DaSilva Eligibility Motion")

at 1; see, e.g., id. at 4 (after "immense pressure").) He cited the FCA provision which

states, inter alia, that "[n]otwithstanding subsection (b)"--the section that authorizes

a qui tam action--if the government pursues an "alternate remedy available to [it]," the

10
person who initiated the qui tam action "shall have the same rights in such proceeding

as such person would have had if the action had continued under this section,"

31 U.S.C. § 3730(c)(5) (emphasis added). DaSilva argued that the FCA "contains no

requirement that a relator's original claim continue or succeed in order for the relator

to share in fruits of the alternate remedy pursued by the Government" (DaSilva

Eligibility Motion at 2) and that he is thus entitled to a relator's share of the

government's settlement proceeds.

The government opposed the motion, disputing, inter alia, DaSilva's

interpretation of § 3730(c)(5). It argued that "section 3730(c)(5) unambiguously

requires a pending qui tam complaint in order for the government to elect an 'alternate

remedy,' and for the 'alternate remedy' provision to be triggered." (United States

Memorandum of Law in Opposition to DaSilva's Motion To Be Declared Eligible for

a Share of the Government's Recovery Under the False Claims Act at 10.)

The government cited authorities stating that an action that was

voluntarily dismissed without prejudice is treated as never having been brought, and

it denied that any undue pressure had been applied to cause DaSilva to dismiss the

2014 qui tam action. Given that such an action is brought in the name of the United

States, to remedy wrongs to the United States, DaSilva's fugitive status--undisclosed

11
in his qui tam complaint, which called him a resident of Michigan--caused the

government concern for whether its interests would be represented properly, and

warranted "inquir[y as to] whether the applicable rules of professional responsibility

permitted counsel to represent DaSilva in his qui tam action" (id. at 16). The

government stated that DaSilva's motion had not described--and could not point to--

any impropriety on the part of the government in raising its concerns.

C. The District Court's Denial of DaSilva's Motion for a Share

In an opinion dated February 3, 2017, reported at 232 F.Supp.3d 583, the

district court denied DaSilva's motion to be declared eligible to share in the

government's recovery from EOTech. The court stated that although the FCA

"generally entitles a relator to a share of a recovery obtained by the government

through an 'alternate remedy' to the action initiated by the relator," 232 F.Supp.3d

at 584, "the terms of Section 3730(c)(5) unambiguously preclude" the award of such

a share to DaSilva, because prior to the government's bringing suit he had voluntarily

dismissed his qui tam action, id. at 587. The court reasoned as follows:

By beginning with the phrase "[n]otwithstanding
subsection (b)," Section 3730(c)(5) makes clear that the "alternate
remedy" described in that section is an "alternate" to the

12
 government's options listed in Section 3730(b). Specifically,
Section 3730(c)(5) governs the relator's rights when the
government "elect[s] to pursue its claim through any alternate
remedy," 31 U.S.C. § 3730(c)(5)--that is, an "alternate" to the
remedies set forth in Section 3730(b)(4), which are limited to (a)
intervening and "proceed[ing] with the [qui tam] action" or (b)
"declin[ing] to take over the action" and providing the relator with
"the right to conduct the action," 31 U.S.C. § 3730(b)(4). The
implication of this framework is clear: when there is no qui tam action
for the government to "take over," the government's filing of its own
action is not an "alternate" to taking over (or not taking over) a qui tam
action.

232 F.Supp.3d at 587 (emphases ours).

The court noted that the effect of a voluntary dismissal without

prejudice, such as DaSilva's, is to

"le[ave] the situation as if the action never had been filed," 9 Charles
Alan Wright & Arthur R. Miller et al., Federal Practice and
Procedure § 2367 (3d ed. 2016), and "render[] the proceedings a
nullity," 8 Moore's Federal Practice § 41.40[9][b] (2016).

232 F.Supp.3d at 588 (emphases ours). Thus,

[f]ramed in terms of the instant action, a dismissed qui tam suit does
not present the government with the choice between acting under
subsection (b)(4) or pursuing an "alternate remedy" authorized by
subsection (c)(5). Accordingly, the government's commencement
and settlement of this action was not an "alternate remedy" to
DaSilva's qui tam action because DaSilva had dismissed his action.

Id. at 587 (emphasis ours). The court concluded that

13
 DaSilva's decision to voluntarily dismiss his qui tam action in 2014
precludes him from clambering back on board for a share of the
government's proceeds as though he had never dismissed his own
action. To hold otherwise would contradict the plain language of
Section 37[30](c)(5) and provide DaSilva with a windfall to which
he is not entitled under the statute.

Id. at 589 (emphases added).

II. DISCUSSION

On appeal, DaSilva contends principally that the district court's

interpretation of § 3730(c)(5) as not authorizing a private person to share in FCA

proceeds received by the government in its own suit unless he had a qui tam action

pending when the government commenced its suit is contrary to the plain language

of that subsection and conflicts with the purpose and legislative history of the FCA.

He also contends that his terminated qui tam action should not have been treated as

nonexistent, arguing that his dismissal of the action was not voluntary but rather was

coerced by the government.

We review for clear error findings of fact as to such questions as whether

DaSilva's attorneys were subjected to any pressure. We review de novo conclusions

14
of law, such as whether any such pressure was improper or amounted to coercion,

whether DaSilva's dismissal of the 2014 qui tam action without prejudice constituted

a voluntary dismissal within the meaning of the Rules of Civil Procedure, and

whether the government pursued an alternate remedy within the meaning of

31 U.S.C. § 3730(c)(5), so as to entitle DaSilva to share in that remedy's proceeds.

Preliminarily, we note that the record is opaque as to the authorization

for DaSilva's ability to seek relief in the present action. DaSilva referred to a need to

"reopen[]" the case (DaSilva Eligibility Motion at 16-17 (citing Fed. R. Civ. P. 60)). The

district court, denying the eligibility motion, stated that DaSilva should not be

allowed to "clamber[] back on board for a share of the government's proceeds as though

he had never dismissed his own action." 232 F.Supp.3d at 589 (emphases added).

Whether the motion was treated as one under Fed. R. Civ. P. 60(b) to reopen the

government's action, although in that action DaSilva was neither "a party" nor "[a

party's] legal representative," id., or one to reopen DaSilva's own voluntarily

dismissed qui tam action, we conclude that it was meritless. We reject DaSilva's

challenges to the district court's order for the reasons that follow.

15
A. DaSilva's Unsupported Claim of Coercion

We deal first with DaSilva's contention that the dismissal of his 2014

qui tam action was improperly coerced, since well established legal principles and the

clarity of the record make its lack of merit obvious.

1. Voluntary Dismissal Principles

Rule 41(a) of the Federal Rules of Civil Procedure, subject to certain other

rules not pertinent here and to "any applicable federal statute," allows a plaintiff, by

filing either a stipulation of dismissal signed by all parties who have appeared or a

notice of dismissal before the opposing party has served either an answer or a motion

for summary judgment, to voluntarily dismiss his action without prejudice. Fed. R.

Civ. P. 41(a)(1)(A) and (B). As a general matter,

[a] first dismissal either by notice or stipulation under Federal
Rule 41(a)(1)(A) is without prejudice to the commencement of
another action, unless otherwise stated in the notice or stipulation
itself.

9 Wright & Miller, Federal Practice and Procedure § 2367, at 549 (3d ed. 2017) ("Wright

& Miller").

16
 In the context of a qui tam action, this general Rule 41(a) framework is

subject to several constraints imposed by the FCA. First, the relator may not

voluntarily dismiss such an action without the written consent of the court and the

United States Attorney General. See 31 U.S.C. § 3730(b)(1). In addition, although the

voluntary dismissal is without prejudice to the commencement of a new action, a new

qui tam action is impermissible if it is based on allegations or transactions which, by

the time the new action is sought to be filed, "are the subject of a civil suit or an

administrative civil money penalty proceeding in which the Government is already

a party," id. § 3730(e)(3), or are the subject of another person's pending qui tam action,

see id. § 3730(b)(5).

As to the usual effect of a Rule 41(a) dismissal--aside from a court's

inherent postdismissal authority to consider such collateral matters as the possibility

of sanctions, see, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395-97 (1990)--it is

hornbook law that "a voluntary dismissal without prejudice under Rule 41(a) leaves

the situation as if the action never had been filed," Wright & Miller § 2367, at 559 (emphasis

added); see, e.g., 8 Moore's Federal Practice § 41.34[6][d] (2018) (stipulation for dismissal

"without prejudice terminates the action as if it were never filed" (emphasis added)).

17
 This long established principle has been recognized by this Circuit and

most others. See, e.g., A.B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir. 1952) ("voluntary

dismissal of a suit leaves the situation so far as procedures therein are concerned the

same as though the suit had never been brought"), cert. denied, 344 U.S. 878 (1952);

Bomer v. Ribicoff, 304 F.2d 427, 428 (6th Cir. 1962) (dismissal of an action without

prejudice leaves the situation the same as if the suit had never been brought); In re

Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213, 219 (8th Cir. 1977)

(same); Beck v. Caterpillar, Inc., 50 F.3d 405, 407 (7th Cir. 1995) (same); EEOC v. W.H.

Braum, Inc., 347 F.3d 1192, 1201 (10th Cir. 2003) (same); In re Matthews, 395 F.3d 477,

480 (4th Cir. 2005) (same); Harvey Specialty & Supply, Inc. v. Anson Flowline Equipment,

Inc., 434 F.3d 320, 324 (5th Cir. 2005) (same); City of South Pasadena v. Mineta, 284 F.3d

1154, 1157 (9th Cir. 2002) (same; "any future lawsuit based on the same claim [is] an

entirely new lawsuit" (internal quotation marks omitted)); Sandstrom v. ChemLawn

Corp., 904 F.2d 83, 86 (1st Cir. 1990) (same; "the page is once again pristine").

As discussed further in Part II.B.2.c. below, this principle is applicable to

a voluntarily dismissed qui tam action. See Webster v. United States, 217 F.3d 843 (4th

Cir. 2000) (table), 2000 WL 962249 (July 12, 2000) ("Webster"). Citing, inter alia,

contemporaneous editions of Wright & Miller and Moore's Federal Practice, the Webster

18
court noted that "[a] voluntary dismissal without prejudice leaves the situation as if

the action never had been filed" (internal quotation marks omitted) and "renders the

proceedings a nullity" (internal quotation marks omitted). 2000 WL 962249, at *2. The

court ruled that "Webster c[ould ]not assert the rights of an original qui tam plaintiff

. . . because she abandoned those rights when she voluntarily dismissed her [prior

qui tam] suit." Id.

2. The Record

In seeking to avoid this normal consequence of a voluntary dismissal,

DaSilva argues that the district court should not have found his dismissal voluntary

because he presented evidence that it was instead the result of impermissible coercion

by the government (see DaSilva brief on appeal at 23-27). The record does not support

this contention.

Before Judge Sullivan in the district court, the qui tam attorneys argued

that DaSilva had dismissed his qui tam action "only after intense pressure from the

government" (DaSilva Eligibility Motion at 1). In support of this assertion, they stated

as follows, citing portions of the Radner affidavit:

19
 AUSA Nawaday claimed [DaSilva's] counsel was in violation of
ethical duties by representing [DaSilva] because he was a fugitive.
[Radner Aff.] ¶ 28. [DaSilva's] counsel was left with the belief that
if [DaSilva's] complaint were not dismissed, bar grievances would
be filed against [DaSilva's] counsel. Id. ¶ 31. Subsequently, under
immense pressure from AUSA Nawaday, [DaSilva] dismissed his
case with the consent of the Government and without prejudice
because of the alleged difficulties in prosecuting the case while
Mr. DaSilva remained out of the country avoiding unrelated
criminal matters in Michigan. Id. ¶ 33.

(DaSilva Eligibility Motion at 4.) The record citations in that argument support only

the proposition that Radner, in paragraph 31 of his affidavit, stated that "[b]ased upon

the communications with the New York U.S. Attorney's office it was my belief that

if [DaSilva] did not dismiss his action, bar grievances would be filed against

[DaSilva's] counsel" (Radner Aff. ¶ 31). Radner's paragraph 33--the only record item

cited in support of DaSilva's claim of "immense pressure"--stated in full as follows:

Counsel for DaSilva voluntarily dismissed the action on August 19,
2014, and the United States consented to such voluntary dismissal on
August 20, 2014. This case was then dismissed without prejudice
on September 3, 2014.

(Radner Aff. ¶ 33 (emphases added).)

The other paragraph of Radner's affidavit that was cited in the Eligibility

Motion's claim of immense and intense pressure stated as follows:

20
 On April 25, 2014, DaSilva's qui tam complaint was filed.

On April 28, 2014, AUSA Nawaday stated in an email to
[DaSilva's] Counsel "Please let us know if you are available at 2
pm tomorrow to discuss the complaint with my colleague . . . and
me. Among other things, we would like to hear your position as
to why you chose to list Mr. DaSilva is listed [sic] as a resident of
Michigan in paragraph 17 and why representation of a fugitive in
a new civil matter, to assert claims on behalf of the United States,
complies with the applicable rules of professional conduct.
Thanks."

(Radner Aff. ¶ 28.)

Nothing other than paragraphs 28, 31, and 33 of the Radner affidavit was

cited to support DaSilva's claim of coercion.

In reality, the record forecloses any conclusion other than that the

dismissal was voluntary. DaSilva's attorneys did not contend that the government

had misquoted the Michigan bar governance principle that provided that, as to "a

client who has chosen independently to become a fugitive from justice," a "lawyer

may not represent the client in collateral or unrelated matters while the lawyer knows

the client remains a fugitive," Mich. Ethics Op. RI-160. And we have seen no

indication in the record that DaSilva's attorneys suggested to Judge Nathan that the

government lacked a legitimate concern about the propriety of (a) having the United

States represented by a fugitive who, in the words of his own attorneys, "remained

21
out of the country avoiding the unrelated criminal matters in Michigan" (DaSilva

Eligibility Motion at 4), and (b) having the government represented by his attorneys

who were thus apparently willing to proceed in violation of express ethical

constraints.

Although DaSilva on appeal complains that the government referred

only to the "syllabus" of the Michigan Ethics Opinion (or "Opinion"), and states that

"[a] closer reading of the [O]pinion's text would have revealed a more nuanced

picture" (DaSilva brief on appeal at 25), the record does not indicate that his counsel

proffered a "nuanced" reading to either Judge Nathan or Judge Sullivan. Nor is it

clear to us from our own reading of the complete text of the Michigan Ethics Opinion

that there is any reasonable basis for deeming the prohibition summarized in the

syllabus inapplicable to DaSilva's attorneys. The text described a client who was on

probation, who had removed his physical restraints and become a fugitive, and who

had asked his lawyer to assist him in asserting claims for the recovery of money and

property. The Opinion's conclusion was reported nearly verbatim in the syllabus,

which stated, inter alia, "the lawyer must counsel the client that the requested services

may not be performed while the client remains a fugitive. If the lawyer's attempts to convince

the client to come forward are unsuccessful, the lawyer must withdraw from representing the

client." Mich. Ethics Op. RI-160 (emphases added).

22
 Nor did DaSilva's attorneys suggest that there was any error in Judge

Nathan's factual understanding that "counsel for Mr. DaSilva ha[d] stated [to the

government] their intention to withdraw and voluntarily dismiss this action if Mr.

DaSilva did not surrender by June 23, 2014," July 2014 Order (emphasis added); see

also August 2014 Order ("qui tam counsel" had made a "representation to the

Government that they would voluntarily withdraw the complaint if DaSilva did not

surrender" (emphasis added)). And when the August 2014 Order stated, in light of

the facts that DaSilva had not returned and qui tam counsel had not withdrawn the

complaint, that the government could move for dismissal, DaSilva's qui tam counsel

quickly filed a motion-- having been assured that the government would consent--

"request[ing] that th[e] action be voluntarily dismissed without prejudice . . . . pursuant

to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure." (DaSilva Voluntary

Dismissal Request at 1 (emphasis added)).

DaSilva's Rule 41(a)(1)(A)(i) motion was granted in light of the United

States's consent and "[i]n light of Relator Milton DaSilva's request on August 19, 2014

that this action be voluntarily dismissed." September 2014 Order.

The record thus provides no basis for a finding that DaSilva had in effect

been coerced to abandon his qui tam action. Indeed, Radner's affidavit, after stating

23
that "Counsel for DaSilva voluntarily dismissed the action," went on to say that

"[n]othing in any of the orders prevented or precluded counsel for DaSilva to re-file

this claim," and that in fact counsel had

planned on refiling this action whether or not DaSilva returned.
However, for simplicity's sake, we were waiting for him to return.

(Radner Aff. ¶¶ 33, 34.)

In sum, the record cannot support the claim that DaSilva was unfairly

pressured to dismiss his qui tam action. The district court properly found that the

action was voluntarily dismissed. Given that the legal effect of such a dismissal is

that it is as if the action had never been filed, and given that DaSilva never filed a new

action, the district court correctly ruled that there was no qui tam action pending

when, more than 14 months later, the United States filed its own action against

EOTech.

B. DaSilva's Claim for a Share of the Proceeds from the
Government's FCA Action Against EOTech

As indicated at the outset of the Background section of this opinion, an

action under the FCA may be brought either by the government, in the name of the

United States, see 31 U.S.C. § 3730(a), or by a private person as the relator in a qui tam

24
action, see id. § 3730(b). The government has the right to intervene in a qui tam action.

See id. §§ 3730(b)(2) and (b)(4). If the government intervenes, it takes on "the primary

responsibility for prosecuting the action," id. § 3730(c)(1); if it declines to intervene in

the qui tam action, "the person who initiated the action shall have the right to conduct

the action," id. § 3730(c)(3).

1. Shares of the Proceeds for the Qui Tam Relator

Section 3730(d), titled "AWARD TO QUI TAM PLAINTIFF," contains

several express provisions as to the relator's permissible share of the amount the

government is awarded in, or receives in settlement of, his qui tam action. That

subsection states in pertinent part as follows:

(1) If the Government proceeds with an action brought by a
person under subsection (b), such person shall . . . [generally] receive
at least 15 percent but not more than 25 percent of the proceeds of the
action or settlement of the claim, depending upon the extent to which
the person substantially contributed to the prosecution of the
action. . . . Any payment to a person under the [above] sentence . . .
shall be made from the proceeds. . . .

(2) If the Government does not proceed with an action under this
section, the person bringing the action or settling the claim shall
receive an amount which the court decides is reasonable for
collecting the civil penalty and damages. The amount shall be not
less than 25 percent and not more than 30 percent of the proceeds of the
action or settlement and shall be paid out of such proceeds. . . .

25
31 U.S.C. §§ 3730(d)(1)-(2) (emphases added). Each of these paragraphs provides that

the relator will also be entitled to reasonable attorneys' fees, expenses, and costs, but

to be paid by the defendants. See also id. § 3730(d)(3) (if the qui tam relator planned

and initiated the FCA violation on which the action was brought, his share of the

proceeds may be reduced; and if he is convicted of criminal conduct arising from his

role in the violation, he is to receive no share).

In sum, as most relevant here, under paragraph (1) of subsection (d),

when the government has intervened in (and thus takes over) the qui tam action

brought under "subsection (b)," the relator will generally be entitled to a share of

between 15% and 25% of what the government receives in the action or in settlement

of the claim. Under paragraph (2) of subsection (d), when the government has not

proceeded under "this section" (emphasis added)--i.e., it has neither intervened in the

§ 3730(b) qui tam action nor brought its own FCA action under § 3730(a), leaving it up

to the relator to conduct the qui tam action--the relator's share will generally be

between 25% and 30% of the proceeds of the qui tam action or settlement. But

§ 3730(d) does not make any provision for the qui tam relator to receive a share of

proceeds received by the government for violation of the FCA if the government has

26
not intervened in the qui tam action and has instead brought its own suit under

§ 3730(a). DaSilva contends that this scenario is one that is covered by § 3730(c)(5).

2. The Government's Pursuit of an "Alternate Remedy"

Section 3730(c), titled "RIGHTS OF THE PARTIES TO QUI TAM

ACTIONS," contains several provisions as to the conduct of qui tam actions: some

expressly applicable when the government has intervened, some expressly applicable

when it has not, and at least one applicable whether or not it has intervened.

Under paragraphs (1) and (2) of § 3730(c), if the government has

intervened and "proceeds with the action," it assumes primary responsibility for the

action, but the qui tam relator "ha[s] the right to continue as a party to the action,

subject to the limitations set forth in paragraph (2)," 31 U.S.C. § 3730(c)(1). Paragraph

(2) provides in part as follows:

(A) The Government may dismiss the action notwithstanding
the objections of the person initiating the action if the person has been
notified by the Government of the filing of the motion and the
court has provided the person with an opportunity for a hearing
on the motion.

(B) The Government may settle the action with the defendant
notwithstanding the objections of the person initiating the action if the
court determines, after a hearing, that the proposed settlement is
fair, adequate, and reasonable under all the circumstances. . . .

27
 (C) Upon a showing by the Government that unrestricted
participation during the course of the litigation by the person
initiating the action would interfere with or unduly delay the
Government's prosecution of the case, or would be repetitious,
irrelevant, or for purposes of harassment, the court may, in its
discretion, impose limitations on the person's participation, such as--

(i) limiting the number of witnesses the person may
call; (ii) limiting the length of the testimony of such
witnesses; (iii) limiting the person's cross-examination of
witnesses; or (iv) otherwise limiting the participation by the
person in the litigation. . . .

31 U.S.C. §§ 3730(c)(2)(A)-(C) (emphases added).

Paragraph (3) of § 3730(c) deals with proceedings in the qui tam action

when the government has elected--as permitted in § 3730(b)(4)--"not to proceed with

the action." 31 U.S.C. § 3730(c)(3). Paragraph (3) provides in part that "the person

who initiated the action shall have the right to conduct the action," although the

government may be allowed to intervene later "upon a showing of good cause." Id.

Paragraph (4) of § 3730(c)--which we discuss further in Part II.B.2.c. below--provides

that "[w]hether or not the Government proceeds with the action," the government

may persuade the court to stay discovery by the qui tam relator if that discovery

"would interfere with the government's investigation or prosecution of a criminal or

civil matter arising out of the same facts." Id. § 3730(c)(4).

28
 Paragraph (5) of § 3730(c), on which DaSilva relies as authority for his

eligibility to share in the proceeds of the action brought by the government against

EOTech under § 3730(a), provides as follows:

(5) Notwithstanding subsection (b), the Government may elect
to pursue its claim through any alternate remedy available to the
Government, including any administrative proceeding to
determine a civil money penalty. If any such alternate remedy is
pursued in another proceeding, the person initiating the action shall have
the same rights in such proceeding as such person would have had if the
action had continued under this section. Any finding of fact or
conclusion of law made in such other proceeding that has become
final shall be conclusive on all parties to an action under this
section. For purposes of the preceding sentence, a finding or
conclusion is final if it has been finally determined on appeal to
the appropriate court of the United States, if all time for filing
such an appeal with respect to the finding or conclusion has
expired, or if the finding or conclusion is not subject to judicial
review.

31 U.S.C. § 3730(c)(5) (emphases added). Our Court has not previously had occasion

to interpret this section.

Several of our Sister Circuits have dealt with cases concerning the

meaning of § 3730(c)(5)'s "alternate remedy" clause. The consensus appears to have

been that § 3730(c)(5) is applicable only if, when the government chose to pursue any

alternate remedy, there was a qui tam action pending into which the government

could--alternatively--have intervened. See United States ex rel. Babalola v. Sharma, 746

29
F.3d 157, 162 (5th Cir. 2014) ("Babalola") (noting that "no circuit court has expressly

held that a qui tam action must be filed prior to the alternate remedy," but

"interpret[ing] other circuits' analyses of the alternate remedy provision as implicitly

recognizing that a qui tam suit must be filed before there is an alternate remedy,"

citing as examples United States ex rel. Bledsoe v. Community Health Systems, Inc., 342

F.3d 634, 647 (6th Cir. 2003) ("Bledsoe"); United States ex rel. LaCorte v. Wagner, 185 F.3d

188, 190 (4th Cir. 1999) ("LaCorte"); and United States ex rel. Barajas v. Northrop Corp.,

258 F.3d 1004, 1010 (9th Cir. 2001) ("Barajas")). See also Webster, 2000 WL 962249, at *2.

In Babalola, medical assistants who had practiced medicine in Nigeria

("the Assistants") sent an anonymous letter to the government in 2007 alleging, in

detail, that the defendants had submitted numerous fraudulent Medicare and

Medicaid claims. The government's investigation of these allegations (which

included contacting the theretofore anonymous Assistants to inquire whether they

had any knowledge about the allegations) resulted in the defendants' indictment in

July 2009, their guilty pleas in April 2010, and their sentences in February 2011 which

included orders to pay more than $43 million in restitution. See 746 F.3d at 159. In

November 2011, while the defendants' appeals from their sentences were pending

(the restitution ordered was later reduced to some $37.6 million), the Assistants filed

30
their FCA qui tam action based on the claims set out in their 2007 anonymous letter,

and they later moved under § 3730(c)(5) for a share of the government's recovery of

restitution in the criminal case. The government moved to dismiss the qui tam action

on the ground that the relators were not entitled to share in money pursued by the

government prior to their filing of the qui tam action. The district court granted the

government's motion; the court of appeals affirmed.

Examining the first sentence of § 3730(c)(5), which states that the

government may elect to pursue an FCA claim through any alternate remedy

available to it "[n]otwithstanding subsection (b)," and noting that "subsection (b) is . . .

the provision in § 3730 that allows a private person to file a qui tam action," the Fifth

Circuit stated that

this first sentence means that, notwithstanding that a private
person has filed a qui tam suit, the Government may elect to
pursue an alternate remedy to the qui tam suit. . . .

The word "alternate," as used in this context, is defined as
"a choice between two or among more than two objects or courses."
Webster's Third New International Dictionary (1993) at p. 63. We
agree with the district court's reasoning that for a remedy to be
"alternate" to the qui tam proceeding, there must have been two
proceedings from which to choose. Accordingly, we hold that the
qui tam proceeding must have been in existence at the time of the
Government's election of the alternate remedy.

Babalola, 746 F.3d at 161-62 (emphases ours).

31
 In Webster, the plaintiff had initiated a qui tam action but had later

voluntarily--with the government's consent--dismissed the action without prejudice,

believing that the defendants would be impecuniated by criminal proceedings. The

government subsequently brought a civil action under § 3730(a), and Webster

attempted to intervene. The Fourth Circuit affirmed the denial of her motion to

intervene.

After applying § 3730(b)(5)--which provides that no person other than

the government is allowed to intervene in an action brought under subsection (b), i.e.,

in a private person's qui tam action--to bar a person also from intervening in an action

brought under subsection (a) by the government, see 2000 WL 962249, at *2, the court

rejected Webster's contention that she was entitled to share in any recovery by the

government under § 3730(c)(5):

That provision allows the government "to pursue its claim
through any alternate remedy available to the Government,
including any administrative proceeding to determine a civil
money penalty." If the government elects an alternate remedy,
"the person initiating the action shall have the same rights in such
proceeding as such person would have had if the action had
continued under this section." 31 U.S.C. § 3730(c)(5). Webster
maintains that the government's FCA suit is an alternate remedy
. . . . [W]e disagree. Section 3730(c)(5) "does not confer any rights on
would-be intervenors." LaCorte, 185 F.3d at 191. Rather, it "simply
preserves the rights of the original qui tam plaintiffs when the

32
 government resorts to an alternate remedy in place of the original
action." Id. Webster cannot assert the rights of an original qui tam
plaintiff, however, because she abandoned those rights when she
voluntarily dismissed her [qui tam] suit . . . .

Webster, 2000 WL 962249, at *2 (emphases ours).

The court also rejected Webster's contention that her voluntary dismissal

should be disregarded, i.e., "that she should have the same rights" in the government's

suit "that she would have had in her own, had she not dismissed it," stating that

[r]equiring a qui tam plaintiff to make some effort to prosecute her
suit in order to participate in any ultimate recovery results in neither
unfairness nor the frustration of congressional policy. By barring
private persons from intervening in pending FCA actions or from
bringing related suits, section 3730(b) creates a race to the
courthouse: the winner of that race is the only person allowed to
participate in the government's recovery, thus providing incentive
to promptly report fraud. Once the race is won, however, the
winner is not free simply to claim the prize and go home. As we
and numerous other courts have observed, "[t]he history of the FCA
qui tam provisions demonstrates repeated congressional efforts to walk
a fine line between encouraging whistle-blowing and discouraging
opportunistic behavior." United States ex rel. Springfield Terminal Ry.
v. Quinn, 14 F.3d 645, 651 (D.C.Cir.1994). . . . As the government
points out, Webster's reading of the statute would allow a private party
to file a qui tam false claims suit with no intention of pursuing it,
dismiss the suit without prejudice, and then, when the government
chose to investigate and prosecute its own claim, clamber back on board.
The careful balance struck by Congress would be thrown awry if
individuals could stockpile potential qui tam claims while waiting
for more diligent plaintiffs to bring the case in earnest.

Webster, 2000 WL 962249, at *3 (emphases added).

33
 While Babalola and Webster dealt directly with whether the "alternate

remedy" provision is applicable when there is no qui tam action pending, the courts

in Barajas and Bledsoe were focused more on whether the applicability of § 3730(c)(5)

depended on whether or not the government had intervened in the qui tam action--

and they concluded that it was applicable only if the government had not intervened,

see, e.g., Bledsoe, 342 F.3d at 647 ("We hold that 'alternate remedy' refers to the

government's pursuit of any alternative to intervening in a relator's qui tam action."

(emphasis added)); Barajas, 258 F.3d at 1010 (concluding that § 3730(c)(5)'s "use of the

term 'alternate remedy' makes clear that the government must choose one remedy or

the other"). While we are skeptical that § 3730(c)(5) is so limited, given other FCA

provisions that envision the government's pursuit of other proceedings even after it

has intervened in a qui tam action--for example, allowing the government to seek

stays of discovery by the relator in the qui tam action if that discovery "would interfere

with the Government's . . . prosecution of a . . . civil matter arising out of the same facts,"

"[w]hether or not the Government proceeds with the [qui tam] action," 31 U.S.C.

§ 3730(c)(4) (emphases added)--we agree with Babalola that Barajas and Bledsoe

implicitly considered an existing qui tam action to be a prerequisite to any recovery

under § 3730(c)(5).

34
 All of these opinions found § 3730(c)(5) to be clear and unambiguous in

its availability only if there existed a pending qui tam action in which the government

could intervene. We reach the same ultimate conclusion in the circumstances here--

i.e., that § 3730(c)(5)'s "alternate remedy" provision does not entitle a person to a share

of the government's recovery if, at the time the government pursued its alternate

remedy, the person, having voluntarily dismissed his qui tam action, had no qui tam

action pending. We conclude that "alternate" has that meaning in light of § 3730(c)(5)

when "'read in [its] context and with a view to [its] place in the overall statutory

scheme,'" Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (quoting Roberts v. Sea-Land

Services, Inc., 566 U.S. 93, 102 (2012)). But our road to that conclusion is not so easy.

As discussed below, the word "alternate" appears in a section whose individual parts

are less than pellucid: some that are susceptible to more than one interpretation,

some that we think cannot have been meant literally, and some in which the same

words in successive sentences have demonstrably different meanings.

Although § 3730(c)(5) is set out in full earlier, we repeat its first three

sentences here, numbered, for ease of reference:

[1] Notwithstanding subsection (b), the Government may elect to
pursue its claim through any alternate remedy available to the
Government, including any administrative proceeding to

35
 determine a civil money penalty. [2] If any such alternate remedy
is pursued in another proceeding, the person initiating the action
shall have the same rights in such proceeding as such person would have
had if the action had continued under this section. [3] Any finding of
fact or conclusion of law made in such other proceeding that has
become final shall be conclusive on all parties to an action under
this section.

31 U.S.C. § 3730(c)(5) (emphases added).

a. "Notwithstanding subsection (b)"

The very first clause of § 3730(c)(5), viewed on its own, is ambiguous.

"Notwithstanding subsection (b)" could mean either (1) notwithstanding what that

subsection authorizes or (2) notwithstanding any actions taken in accordance with

that subsection. If it meant solely the former, then no existing qui tam action would

be required in order to trigger the applicability of § 3730(c)(5). However, given

Congress's goal of encouraging private persons to assist the government, see, e.g.,

United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993) ("the entire

purpose of the FCA's qui tam provisions is to employ the help of individuals to

uncover fraud against the government"), and the first sentence's reference to remedies

that are "available to the Government" (emphasis added), we see no basis for inferring

that Congress intended § 3730(c)(5) to confer monetary rewards on persons who are

36
merely authorized to bring fraud suits in the name of the government but do not do

so. If a qui tam action is not pending, it is not available. No one is entitled to share in

the proceeds of the government's recovery by reason of a qui tam action that is merely

an inchoate possibility.

Thus, we interpret the "[n]otwithstanding" clause as meaning that what

follows it is to be given effect regardless of any actions taken in accordance with

subsection (b). If our focus were on actions of the government, we would thus

interpret this initial clause to mean notwithstanding which of the options presented

by subsection (b) was adopted by the government, which include opting to intervene

and declining to intervene, see 31 U.S.C. §§ 3730(b)(4)(A)-(B). A private person,

however, has no options under subsection (b) if he does not pursue his right to bring

a qui tam action.

b. "alternate"

Still focusing on § 3730(c)(5)'s first sentence, we note that the word

"alternate" is one we have not seen used in other statutory enactments focusing on

choices of remedies. However, "alternate" seems clearly to have been meant in its

common usage as a synonym of the more frequently used word "alternative," see

37
Webster's Third New International Dictionary 63 (2002) (defining "alternate" as, inter alia,

"a choice between two or among more than two objects or courses: alternative") (emphases

added). The implication that the government is expected to choose between or

among options that exist is reinforced by other language in the sentence, including

the reference to remedies that are "available to" the government. In addition, non-use

of the simple phrase "may pursue" in favor of the adopted phrase "may elect to

pursue" (emphasis added), likewise suggests a choice between existing options.

Giving effect to common meanings of "alternate" and "available," and to

the presence of other language implying choices between existing options, all

introduced by the phrase "[n]otwithstanding subsection (b)" which deals with qui tam

actions, we agree with the district court that § 3730(c)(5) was meant to allow the

government to choose between (1) exercising subsection (b) rights accorded to it with

respect to a qui tam action and (2) pursuing an alternate or substitute remedy. For

such a choice to be available, a qui tam action must have been in existence. But only

a person, not the government, can bring a qui tam action. If no qui tam action is

pending, a qui tam action remedy is thus not "available" to the government and is not

an "alternate" to any other remedy.

38
 c. "any alternate remedy"

Section 3730(c)(5)'s first sentence allows the government to pursue "any

alternate remedy available to [it]" (emphasis added). The word "any" is all-

encompassing, but the intended scope of the phrase as a whole, despite its apparently

unbounded breadth, is not entirely clear. The means by which the government is

authorized to combat frauds include criminal prosecutions. Indeed, the principal

reason for the FCA requirement that a qui tam complaint initially be filed in camera

and under seal is to minimize the possibility "that a relator filing a civil complaint

would alert defendants to a pending federal criminal investigation," State Farm Fire

& Casualty Co. v. United States ex rel. Rigsby, 137 S. Ct. 436, 443 (2016). In Babalola,

discussed above, the court stated that it assumed arguendo that a criminal prosecution

could be considered an alternate remedy, see 746 F.3d at 161 n.4, but it concluded that

the prosecution in question was in fact not alternate "because there was no qui tam

action pending at the commencement of the restitution proceeding," id. at 159. Yet it

is hardly clear that "any alternate remedy" was meant to include a criminal

prosecution, given that the second sentence of § 3730(c)(5) states that "[i]f any such

alternate remedy is pursued in another proceeding, the person initiating the action"--

i.e., the qui tam relator--"shall have the same rights in such proceeding as such person

39
would have had if the action had continued under this section" (emphases added).

We would find it difficult to infer that Congress intended a private qui tam relator to

be entitled to, for example, conduct discovery and cross-examine the witnesses in a

criminal prosecution.

Regardless, however, of whether "any alternate remedy" may include a

criminal prosecution, we think it clear from other FCA provisions that that phrase

was intended to include the government's authorization to bring a civil suit under

§ 3730(a). For one thing, if the government preferred not to intervene in an existing

qui tam action, it would seem perverse to exclude from the alternatives "available to

[it]" the judicial civil remedy that the government is explicitly authorized to pursue

in § 3730(a).

In addition, other FCA sections indicate that there is no impediment to

the government's commencement of its own action under § 3730(a) after a qui tam

action under subsection (b) has been brought. Paragraph (5) of subsection (b), for

example, provides in part that "[w]hen a person brings an action under this

subsection, no person other than the Government may . . . bring a related action based on

the facts underlying the pending action." 31 U.S.C. § 3730(b)(5) (emphasis added). That

this prohibition is only against persons "other than" the government seems to imply

40
that "the Government" indeed "may . . . bring a related action based on the facts

underlying" a "pending" qui tam action. Further, the paragraph immediately

preceding § 3730(c)(5) explodes any lingering supposition that the government is not

permitted to commence its own § 3730(a) action after a qui tam action has been

commenced. That (c)(4) paragraph, as mentioned previously, provides, in pertinent

part, that the government may obtain stays of discovery by the qui tam relator if that

discovery "would interfere with the government's . . . prosecution of a . . . civil matter

arising out of the same facts," 31 U.S.C. § 3730(c)(4) (emphases added). Given that the

FCA provides that "[i]n no event may a person bring an action under subsection (b)

which is based on allegations or transactions which are the subject of a civil suit or an

administrative civil money penalty proceeding in which the Government is already a

party," id. § 3730(e)(3) (emphases added), the government's prosecution of any "civil

matter arising out of the same facts" as the qui tam action, id. § 3730(c)(4), would

necessarily have been initiated after the filing of the qui tam action.

In sum, while there may be some question as to the precise intended

scope of the phrase "any alternate remedy," we think it clear from the FCA as a whole

that the government may initiate its own suit under § 3730(a) even though there is a

pending qui tam action. The government's suit--in contrast to an inchoate qui tam

41
action--may properly be considered an "alternate [available] remedy" within the

meaning of § 3730(c)(5).

d. "this section" in § 3730(c)(5)'s Second Sentence
vs "this section" in § 3730(c)(5)'s Third Sentence

Section 3730(c)(5)'s second sentence provides that, in the government's

pursuit of an alternate remedy in another proceeding, "the person initiating the action

shall have the same rights in such proceeding as such person would have had if the

action had continued under this section." Although the phrase "this section," viewed

by itself, is literally broader than subsection (b), it is, in § 3730(c)(5)'s second sentence,

limited by the fact that the rest of the sentence speaks in precise terms of "the action"

that was "initiat[ed]" by "the person," which can only refer to the qui tam action

authorized by subsection (b). Thus, in this second sentence of § 3730(c)(5), "the

action" that could be "continued under this section" must mean could be continued

as a qui tam action.

The third sentence of § 3730(c)(5) also uses the term "this section," but

does so in a way that is not tied to a qui tam action. It states that any final "finding of

fact or conclusion of law made in" the government's alternate remedy proceeding

"shall be conclusive on all parties to an action under this section" (emphasis added).

42
As this third sentence speaks in terms of "an action under this section" (emphasis

added) and does not, like the second sentence, use the more restrictive phrases "the

action" and initiated by "the person," we interpret "this section" in the third sentence

to refer to the whole of § 3730.

e. "if the action had continued under this section"

Finally, the second sentence of § 3730(c)(5), in stating that "the person

initiating the action shall have the same rights in such proceeding as such person

would have had if the action had continued under this section," is not, on its own,

entirely clear. DaSilva contends that the "if the action had continued" clause itself

expressly hypothesizes that the qui tam action had been terminated, and since his

action was terminated, he should be entitled to a share of the government's settlement

received in its § 3730(a) action. Although Babalola opines that the language "would

have had if the action had continued under this section" clearly indicates "that the

original qui tam action did not continue," 746 F.3d at 161 (internal quotation marks

omitted), for two reasons we do not equate not-continued here with terminated.

First, while some unadorned variations of the word "continued," such as

"continuance" and "discontinuance," are legal terms of art, see, e.g., Black's Law

Dictionary 387 (10th ed. 2014) (defining "continuance" as, inter alia, "[t]he adjournment

43
or postponement of a trial or other proceeding to a future date"); id. at 563 (defining

"discontinuance" as, inter alia, "[t]he termination of a lawsuit by the plaintiff"), the

word "continued" itself is not defined in that dictionary. Nor, in § 3730(c)(5), is it

unadorned. Section 3730(c)(5) grants rights as "if the action had continued under this

section" (emphasis added), phrasing consistent with a mere pause in the qui tam action

in order to allow the government's pursuit of its alternate remedy.

Second, we view any interpretation of "if the action had continued" to

imply that the qui tam action had in fact been terminated as foreclosed by the third

sentence of § 3730(c)(5). This third sentence provides that any final findings of fact

in the alternate remedy proceeding "shall be conclusive on all parties to an action

under this section." But the alternate remedy proceeding's findings and conclusions

could have no such effect in an action that had already ended. Thus, we conclude

that § 3730(c)(5) refers to qui tam actions that were pending when the government

considered its alternatives and that continued in existence--albeit likely stayed--while

an alternate to participation in the qui tam action was pursued.

***

In sum, we conclude that § 3730(c)(5), read as a whole and in light of

other unambiguous provisions in the FCA, entitles a person who brought a qui tam

44
action to share in the recovery gained by the government in a proceeding it has

pursued as an alternative to the qui tam action, if the relator's qui tam action was

pending when the government was choosing what course to pursue.

DaSilva argues that this interpretation will allow the government

unfairly to intervene in qui tam actions, have those actions dismissed, and then bring

its own action, thereby depriving the qui tam relators of any right to share in the

proceeds gained by the government. The FCA itself, however, includes some

safeguards against unfairness by providing for example, that a qui tam action may not

be dismissed by the government without notice to the relator and, if the relator

objects, without the court's affording "an opportunity for a hearing," 31 U.S.C.

§ 3730(c)(2)(A). And it provides that the government may not settle the action over

the relator's objections unless "the court determines, after a hearing, that the proposed

settlement is fair, adequate, and reasonable under all the circumstances." Id.

§ 3730(c)(2)(B).

But the record before us presents neither the unfairness hypothesized by

DaSilva nor a settlement or dismissal over a relator's objections. DaSilva's qui tam

action was voluntarily dismissed on motion of his attorneys in light of the Michigan

Ethics Opinion prohibiting an attorney from representing in collateral matters a client

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the lawyer knows remains a fugitive. That voluntary dismissal made DaSilva's action

a nullity and left him with no vestige of qui tam relator status. As there was no

existing qui tam action because DaSilva voluntarily dismissed his action, § 3730(c)(5)

does not entitle him to share in the government's recovery in its own subsequent

proceeding.

CONCLUSION

We have considered all of DaSilva's arguments on this appeal and have

found them to be without merit. The district court's order denying his motion to

share in the government's recovery is affirmed.

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