United States ex rel. Hall v. Tribal Development Corp.

MANION, Circuit Judge.

The plaintiffs, Glenn A. Hall, Michael A. Mapes and Fred Tribble, appeal from the district court’s dismissal of their action seeking to void certain contracts entered into between the defendants, Tribal Development *1210Corporation, and the Menominee Indian Tribe. According to plaintiffs’ amended complaint, the defendants entered into lease contracts for goods and services to be used by the Tribe in the operation of gaming activities on their reservation. The plaintiffs, who do not claim to be Indians, alleged that the lease contracts violated 25 U.S:C. § 81 in that they had not been sent to nor approved by the Bureau of Indian Affairs in the Department of the Interior.1 That being the case, the plaintiffs, as private citizens on behalf of the United States, brought this action pursuant to the qui tam2 provisions of section 81 to void the lease contracts and to recover all monies given in consideration thereof, one-half going to the United States Treasury on behalf of the Tribe, the other half going to plaintiffs as their bounty for maintaining a successful action under the statute. Plaintiffs also alleged that the defendants were not licensed as traders to the Tribe as required by section 2643 of the Indian Traders Licensing Act (ITLA). Pursuant to the qui tam provision of 25 U.S.C. § 201,4 the plaintiffs sought to recover from defendants all civil penalties, resulting from their violations of the ITLA, as well as a forfeiture of all the gambling equipment leased to the Tribe. Plaintiffs’ final claim was that the lease contracts violated various provisions of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 to 2721 and, once again, relying upon the qui tam provision of 25 U.S.C. § 201, maintained that they were entitled to recover all civil penalties as provided for under § 2713 of the IGRA. The district court sua sponte determined that plaintiffs had no standing to maintain any of their claims and, on that basis, dismissed the plaintiffs’ complaint. Before evaluating that determination, we touch briefly on the history surrounding the present action.

I.

This action was originally part of a group of consolidated cases (forty-two to be exact) *1211filed by the plaintiffs in the United States District Court for the Third District of Minnesota against various merchants who provided goods and services to the Tribe for use in the gaming operations on Tribal reservations. Several of the defendants filed motions to dismiss; others responded with motions for summary judgment. Pursuant to a stipulation agreement entered into between the plaintiffs and certain defendants, the Minnesota District Court entered an order for change of venue and, on May 17, 1993, transferred the present action, No. 93-3519, to the United States District Court for the Eastern District of Wisconsin. On that same day, the plaintiffs filed their amended complaint in the Eastern District Court of Wisconsin.

On August 6, 1993, the Wisconsin District Court sua sponte entered an order stating that it had recently reviewed the Minnesota District Court’s disposition of the parallel suit in In Re United States ex rel. Hall Litigation, 825 F.Supp. 1422 (D.Minn.1993), aff'd, United States ex rel. Hall v. Creative Games Technology, Inc., 27 F.3d 572 (8th Cir.1994), handed down a month after the present action had been transferred, in which that court determined that plaintiffs, as third parties with no direct interest in the challenged contracts, could not allege an “injury-in-fact” as required under Article III, and therefore were without standing to maintain their qui tam actions under 25 U.S.C. §§ 81 and 201. See Hall, 825 F.Supp. at 1426-27. The Wisconsin District Court was persuaded by this reasoning (particularly that it was applied to the same plaintiffs) and therefore entered an order notifying the parties that they had twenty days in which to show good cause why the present action should not be dismissed for lack of subject matter jurisdiction.

On September 15,1993, the Wisconsin District Court notified the parties that it was dismissing the plaintiffs’ suit for lack of standing. In a short order, the court reiterated that it was persuaded by the reasoning of the Minnesota District Court. The court also observed that the statutes on which plaintiffs relied were enacted for the protection of Indians, whereas plaintiffs were non-Indians, thus placing them outside the “zone of interests” the statutes were intended to protect. See United States ex rel. Hall v. Tribal Development Corp., No. 93-C-494 (E.D.Wis. Sept. 15, 1993). The court concluded that because this ease was indistinguishable from the Minnesota suit in Hall, it was adopting the decision of that ease and accordingly dismissed the plaintiffs’ suit for lack of subject matter jurisdiction. Id.

II.

Article III, section 2 of the United States Constitution “limits the ‘judicial power’ to the resolution of ‘cases’ and ‘controversies.’” Valley Forge College v. Americans United For Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). One of the incidents of Article Ill’s case-or-controversy requirement “is that a litigant have ‘standing’ to challenge the action sought to be adjudicated in the lawsuit.” Id. Standing, in turn, is comprised of three elements: First, the plaintiff must have suffered' an “injury-in-fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second-, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit — that is, the injury has to be' traceable to the defendant and not the result of the conduct of a third person not a party to the action before the court. Third, it must be likely that the injury will- be redressed through a favorable decision by the court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

The issue before us concerns the first element, namely, whether the plaintiffs have suffered a cognizable “injury-in-faet.” The district court apparently was of the view that the plaintiffs, as non-Indians who were not parties to the contract entered into between the Tribe and the defendants, failed to allege an actual or concrete injury to themselves and were therefore unable to satisfy the injury-in-fact requirement of Article III. We say “apparently,” because the district court, in dismissing plaintiffs’ suit, refrained from making any analysis of its own, and instead *1212stated that it was adopting outright the opinion of the Minnesota , District Court in Hall. And that court concluded that the plaintiffs’ failure to allege a personal injury left them without standing to sue. See Hall, 825 F.Supp. at 1425-27.5

But we think that in focusing on whether Hall, Mapes and Tribble themselves were personally injured for purposes of Article III, the district court bypassed the real plaintiff in this suit. This is not a garden-variety private suit brought by Hall, Mapes and Tribble against the defendants. Rather, it is a qui tam action, brought in the name of and on behalf of the United States, as witnessed by the caption of the complaint filed in the district court: “United States ex rel. Glenn A. Hall, Michael A. Mapes, and Fred Tribble.” This is not an instance of artful pleading. Rather it is a requirement of the statutes under which these actions were brought, see 25 U.S.C, § 81 (suit, to recover under, this section must be. brought “in the name of the United States”); 25 U.S.C. § 201 (suit to recover penalties under Title XVIII of the Revised Statutes of 1834 must be brought “in the name of the United States”). It is also a requirement of the Federal Rules of Civil Procedure. See Fed. R.Civ.P. 17(a) (“when a statute of the United States provides, an action for the use or benefit of "Another shall be brought in the name of the United States.”); see also 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1551 at 390 (1990) (same). This makes sense. Qui tam suits by definition involve suits brought by private parties to assist the executive branch in its enforcement of the law, the violation of which affects the interest of the government, not the individual relator, whose only motivation in bringing the suit is to recover a piece of the action given by statute. So when a legislative body enacts provisions enabling qui tam actions, that act carries with it an understanding that in such suits it is the government, and not the individual relator, who has suffered the injury resulting from the violation of'the underlying law and is therefore the real plaintiff in the action.6

Although the Supreme Court has never directly addressed this question, statements from different Justices make it reasonable to infer that if presented with the question today the Court would approve of the notion that it is the government, and not the individual relator, who is the real plaintiff in a qui tam suit. For example, in Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157 (1905), Justice Peckham spoke approvingly of qui tam actions, noting that such actions “by a common informer, who himself had no interest whatever in .the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government.” Id. at 225, 26 S.Ct. at 34 (emphasis added). Decades later, the Court in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), upheld the right of a qui tam relator to bring suit in the name of the United States to recover half the damages sustained by the government resulting from violations of. the False Claims Act. Writing for the Court, Justice Black rebuffed a challenge to the propriety of qui tam provisions in general when he stated that “[q]ui tam suits have been frequently permitted by legislation, and have not been without ■ defense *1213by the courts.” Id. at 541, 63 S.Ct. at 383 (including in a footnote the language we previously quoted from Marvin, as well as citation to one of the qui tam provisions at issue in this suit, 25 U.S.C. § 201). In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Court upheld a taxpayer’s standing to challenge the expenditure of federal funds under the Elementary and Secondary Educational Act of 1965 by parochial schools as violating the First’ Amendment. In his dissent, Justice Harlan disagreed with the Court’s view that the plaintiff had a sufficient personal or proprietary interest in the federal funds to confer standing; to sue. What is important for our purposes is that portion of his dissenting opinion, in which he states that parties lacking a personal stake in the litigation may nevertheless have standing under Article III “when acting as private attorneys-general as ‘representatives of the public interest. ’ ” Id. at 120, 88 S.Ct. at 1963 (Harlan, J., dissenting) (citing, inter alia, cases involving qui tam actions, notably, Marvin and United States ex rel. Marcus) (emphasis added). Finally, Justice Scalia, writing for the Court in Lujan, implicitly acknowledges that the United States is the real plaintiff in qui tam actions when he observes in dicta that' these are “suit[s] against a private party for the government’s benefit. ” Lujan, 504 U.S. at 572-73, 112 S.Ct. at 2143 (emphasis added).

Lower courts, on the other hand, have been more direct.’ Although we have not found a decision addressing this in the context of the qui tam statutes before us, several circuit courts have unequivocally held that in a qui tam action to recover for violations of the False Claims Act, 31 U.S.C. §§ 3729 to 3733 (West Supp.1994), it is the government, not the individual relator, who is the real plaintiff in the suit. See, e.g., United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 720 (9th Cir.1994) (“It is clear ... that in a qui tam action, the government is the real party in interest”); United States ex rel. Kreindler v. United Technologies, 985 F.2d 1148, 1154 (2d Cir.) (“the government remains the real party in interest ... in the qui tam suit”), cert. denied, — U.S. —, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993); United States ex rel. Milam v. Univ. of Tex. M.D. Anderson Cancer Center, 961 F.2d 46, 48 (4th Cir.1992) (“the United States must be the real plaintiff in this suit”).

Once we accept the premise that the United States is the real plaintiff in a qui tam action, it stands to reason that challenges to the standing of the government’s representative are beside the point. The United States, like a corporation, must act through its agents. When it acts in a prosecutorial fashion, it usually does so through attorneys within the Department of Justice, or one of its executive agencies. See United States ex rel. Troung v. Northrop Corp., 728 F.Supp. 615, 619 (C.D.Cal.1989); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 382 (1989).’ In such instances, no one would question whether the Assistant United States Attorney prosecuting the government’s case has suffered a sufficient injury-in-fact ■ or possesses enough of a personal stake in the matter in order to satisfy the requirements of Article III; it is enough that the United States, as the represented party, has been injured. That Congress should enlist a private party, instead of one of the government’s more common representatives, to champion the government’s case should not change this outcome. Nor, for that matter, should it be necessary for the private qui tam relator to demonstrate a “personal stake” in the outcome of the dispute any more than it would be necessary for an Assistant United States Attorney to prove that he has a personal stake in the outcome of the case — for example, receiving his salary, advancing his career or achieving personal fulfillment — before he would be allowed to litigate on behalf of the government. See Caminker, supra at 382-83. Rather, for the purpose of establishing standing, it is enough that there “exist[s] ... a clearly defined, adversarial relationship between the government and the defendant, not between the defendant and the United States’ particular legal representative.” United States ex rel. Truong, 728 F.Supp. at 619; Caminker, supra at 383; see also United States ex rel. Kreindler, 985 F.2d at 1154 (“In a qui tam action [under the False Claims Act], the plaintiff sues on behalf of and in the name of the government and invokes the standing of *1214the government resulting from the fraud injury”), United States ex rel. Milam, 961 F.2d at 49 (“the government, and not the relator, must have suffered the ‘injury in fact’ required for Article III”). It is enough, then, that the United States, as the entity on whose behalf and in whose name this suit was brought, has suffered an injury-in-fact under Article III. Requiring an additional showing of injury on the part of the qui tarn relator would be an analytical redundancy.

Having concluded that the qui tarn relators in this case are the proper parties to represent the United States in its suit against these defendants, the only issue remaining is whether the United States, as the real plaintiff, has suffered a sufficient injury for purposes of Article III. There can be no serious question that it has. The amended complaint filed in this case alleges various violations of 25 U.S.C. §§81 and 264. The statutes under which the relators brought this action reflect what has been commonly referred to as “the unique trust relationship between the United States and the Indians.” Oneida County, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 247, 105 S.Ct. 1245, 1248, 84 L.Ed.2d 169 (1985); United States ex rel. Mosay v. Buffalo Bros. Mgmt, Inc., 20 F.3d 739, 742 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 185, 130 L.Ed.2d 119 (1994). As such, it is the United States, as trustee, who owns the rights conferred by these statutes. And taking as true the allegations contained in ..the relators’ amended complaint, we conclude that the United States has suffered a sufficient injury and therefore has standing to maintain this action through the qui tarn relators.

There is one final matter. In its order, the Wisconsin District Court did offer one independent reason for its dismissal of this qui tarn complaint. According to the court, “[t]he statutes at issue were enacted for the protection of the Indian Tribes and the Plaintiffs are not in the ‘zone of interests’ protected by the statutes.” United States ex rel. Hall, No. 93-C-494 at 2 (E.D.Wis. Sept. 15, 1993). As support for this statement, the court cited to a decision from the Eighth Circuit, Schmit v. International Finance Mgmt. Co., 980 F.2d 498 (8th Cir.1992) (per curiam), as well as a recent decision out of the Tenth Circuit, Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir.1993).

By using the phrase “zone of interests,” the court was referring to one of the non-constitutional prudential considerations courts may use in determining whether a particular litigant may assert standing. See Lujan, 504 U.S. at -, 112 S.Ct. at 2136; Valley Forge College, 454 U.S. at 474. The zone of interests test was first articulated in Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and was formulated to determine whether a would-be challenger to. an agency’s action is pursuing an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee.” Id. at 153, 90 S.Ct. at 83; if so, then the party may be considered to be among the class of persons permitted to obtain judicial review of the agency’s action pursuant to § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702. The Supreme Court has subsequently indicated that the zone test applies in non-agency contexts as well, such as where the would-be plaintiff points to constitutional violations as the basis of his complaint. E.g., Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320-21 n. 3, 97 S.Ct. 599, 602 n. 3, 50 L.Ed.2d 514 (1977) (Commerce Clause violation); see also Clarke v. Securities Industry Ass’n, 479 U.S. 388, 400 n. 16, 107 S.Ct. 750, 757-58 n. 16, 93 L.Ed.2d 757 (1987) (noting the applicability of the zone test beyond the context of the APA).

However, the Supreme Court has made it clear that prudential considerations, such as the zone of interests test, do not apply where Congress, by legislation, has expressly authorized a particular action by a particular person. E.g., Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206-07, 45 L.Ed.2d 343 (1979). Here, Congress, by enacting these qui tarn statutes, has expressly enlisted private parties to act as agents for the government. In other words, these rela-tors are the very persons intended by Con*1215gress to maintain these suits. See also 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.13 at 76 (1984) (“if Congress wishes, indeed, it can enact a qui tam statute to enable a private party to invoke the standing of the government to collect a civil penalty”). In light of this express legislative authorization, these qui tam relators are the appropriate parties to bring this suit, meaning that the district court “lack[ed] the authority to create [a] prudential barrier to standing.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214 (1982); see also Warth, 422 U.S. at 501, 95 S.Ct. at 2206 (stating that as long as the requirements of Article III are satisfied, “persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interest of others”).

Although unnecessary in fight of the preceding discussion, we touch briefly upon the two decisions cited by the Wisconsin District Court in support of its application of the zone of interests test to bar this qui tam action. As to the Tenth Circuit’s decision in Western Shoshone Business Council, it appears that the court was addressing a procedurally different creature than the case before us. There, a law firm which had a contract for legal services with the Western Shoshone Indian Tribe brought an action against the Acting Area Director for the Bureau of Indian Affairs, challenging the Director’s determination that the contract did not require approval by the Bureau pursuant to 25 U.S.C. § 81. Id. at 1054. Unlike the case before us, this was not a qui tam suit against private defendants, but rather a suit by a private party challenging an administrative determination by the Bureau of Indian Affairs. As such, this decision provides no legal support whatsoever for a determination that these qui tam relators were without standing to prosecute the government’s suit against the defendants.

The Eighth Circuit’s decision in Schmit does address a situation similar to ours. In Schmit, a non-Indian plaintiff invoked § 81 as the basis to void a contract entered into between the Winnebago Tribe and a provider of gaming and casino services. The district court dismissed the plaintiffs complaint7 for lack of standing. On review, the Eighth Circuit correctly observed that § 81 was enacted “‘solely for the benefit of the Indians.’ ” Id. at 498 (quoting United States ex rel. Shakopee Mdewakanton Sioux Community v. Pan American Mgmt. Co., 616 F.Supp. 1200, 1208 (D.Minn.1985), appeal dismissed, 789 F.2d 632 (8th Cir.1986)). From this, the court, in a three-paragraph opinion, concluded that Schmit, as a non-Indian, “[was] not within the zone of interest intended to be protected by § 81,” id., and on that basis affirmed the district court’s dismissal. We note, however, that as authority for its application of the zone of interest test, the Eighth Circuit relied upon -two district court decisions, Enterprise Mgmt. Consultants v. United States ex rel. Hodel, 685 F.Supp. 221 (W.D.Okla.1988), aff'd 883 F.2d 890 (10th Cir.1989), and United States ex rel. Shakopee, both of which addressed the same issue that was before the Tenth Circuit in Western Shoshone Business Council—namely, challenges by a non-Indian to a determination by the Bureau of Indian Affairs. See United States ex rel. Hodel, 685 F.Supp. at 222-23; United States ex rel. Shakopee, 616 F.Supp. at 1204, 1207-08. As such, these decisions provide no legal support for the Eighth Circuit’s decision to invoke the zone of interests tests as a barrier to a qui tam action under § 81. More importantly, however, is the fact that Congress has explicitly provided for these suits, which according to the Supreme Court in Havens and Warth means that federal courts are without authority to erect prudential barriers to them. Accordingly, we are obligated to follow the Supreme Court’s lead, and therefore reject Schmit’s application of the zone of interests test as a basis to bar these qui tam relators from bringing the present action.8

*1216III.

Congress, in enacting these qui tam statutes, has authorized private parties to appoint themselves as the government’s prosecutors. Of course, there is. a separate question, not raised by either party: how can a private party, appointed by himself rather than the President or the other appointing officers under Article II, § 2 cl. 2 of the Constitution, represent the United States? That question we leave for another day. The reason for that is straightforward. Although our authority to act under Article III carries with it a corresponding duty to monitor our jurisdiction, and hence the obligation to raise and correct jurisdictional matters sua sponte, as the citation above indicates, an Appointments Clause challenge does not involve Article III, but Article II; hence it is non-jurisdietional, on which see Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries, and Article III, 91 Mich. L.Rev. 163, 213 (1992) (remarking that “the conflation of Article II and Article III concerns [leads] to serious confusion.... The two articles raise quite different concerns; they should be analyzed separately.”). That being the case, we no more have an obligation to take notice of and address potential Article II problems than we do to raise other non-jurisdictional, constitutional violations contained in the record but'not raised by either party. See Wallace v. Duckworth, 778 F.2d 1215, 1219 n. 1 (7th Cir.1985) (noting that courts have no duty sua sponte to raise nonjurisdietional issues). But as far as the actual issue before us, we conclude that Congress has authorized these 'qui tam relators to act on behalf of and in the name of the United States, which means that they are able to invoke the standing of the United States for purposes of satisfying Article -III. Consequently, we REVERSE the district court’s dismissal of the relators’ complaint for lack of standing, and RemaND this action to the district court where it can proceed to' the merits.

. The relevant portion of that statute provides:

No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, ... in consideration of services for said Indians relative to their lands, ... unless such contract or agreement be executed and approved as follows:
Second. It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it.
All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe, or any one else,' for or on his or their behalf, on account of such services, in excess of the amount, approved by the Commissioner and Secretary for such services, may be recovered by suit in the name of the United States in any court of the United States, regardless of the amount in controversy; and one-half thereof shall be paid to the person suing for the same, and the other half shall be paid into the Treasury for the use of the Indian or tribe or for whom it was so paid.

25 U.S.C. § 81.

. "Qui tam” is short for "qui tam pro domino rege quam pro se imposo sequitur,” which in English means "who brings the action as well for the king as for himself.” United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 746 n. 3 (9th Cir.1993) (quoting Bass Anglers Sportsman's Soc’y of America v. U.S. Plywood-Champion Papers, Inc., 324 F.Supp. 302, 305 (S.D.Tex.1971)), cert. denied, — U.S. —, 114 S.Ct. 1125, 127 L.Ed.2d 433 (1994).

. The relevant part of that section provides:

Any person other than an Indian of the full blood who shall attempt to ... introduce goods, or to trade therein, without such license, shall forfeit all merchandise offered for sale to the Indians or found in his possession, and shall moreover be liable to a penalty of $500[J

25 U.S.C. § 264.

. This provision provides:

All penalties which shall- accrue under this title shall be sued for and recovered in an action in the nature of an action of debt, in the name of the United States, before any court having jurisdiction of the same, in any State or Territory in which the defendant shall be arrested or found, the one half to the use of the informer and the other half to the use of the United States- except when the prosecution shall be first instituted on behalf of the United States, in which tase the whole shall be to their use.

25 U.S.C. § 201. The "title” referred to in § 201 is an 1834 statute known as Title XVIII of the Revised Statutes. Many of these have since been repealed; others, including section 264, have been recodified in various sections under Title 25 of the United States Code.

. Simply incorporating another court’s disposition of a related case does not complete the process. Circuit Rule 50 requires that district courts set forth their reasons for dismissal. Among other things, adherence to this rule provides the parties and the reviewing courts with the reasons for the district court’s judgment. See DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.), cert. denied, 498 U.S. 941, 111 S.Ct. 347, 112 L.Ed.2d 312 (1990).

. Contrast this with the typical citizens' suit provision such as the one at issue in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), which provided, in pertinent part, that " 'any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter.’ " Lujan, 504 U.S. at 571-72, 112 S.Ct. at 2142 (quoting 16 U.S.C. § 1540(g)) (emphasis added). Under the language of § 1540(g), the plaintiff brings this suit on his own behalf, and not for the government, which explains why the Court in Lujan regarded the Defenders plaintiffs as the true plaintiffs for purposes of Article III.

. For reasons not explained in the Eighth Circuit’s opinion, the plaintiffs complaint was filed in her individual name and not as a qui tam relator on behalf of the government.

. This opinion was circulated before release to all judges in active service pursuant to Circuit Rule 40(f). No judge favored hearing this case en banc.