United States Ex Rel. Totten v. Bombardier Corp.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2004 Decided August 27, 2004

No. 03-7128

UNITED STATES OF AMERICA EX REL. EDWARD L. TOTTEN,
APPELLANT

v.

BOMBARDIER CORPORATION AND ENVIROVAC, INC.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 98cv00657)

H. Vincent McKnight, Jr. argued the cause and filed the
briefs for appellant.
Thomas M. Bondy, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States of America
in support of appellant. With him on the brief were Peter D.
Keisler, Assistant Attorney General, U.S. Department of Jus-

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

tice, Roscoe C. Howard, Jr., U.S. Attorney, Douglas N.
Letter, Attorney, Colin C. Carriere, Counsel, National Rail-
road Passenger Corporation (Amtrak), and D. Hamilton Pe-
terson, Deputy Counsel.
Mark R. Hellerer argued the cause and filed the brief for
appellee Bombardier Corporation. Philip L. Douglas en-
tered an appearance.
Randall L. Mitchell argued the cause for appellee Enviro-
vac, Inc. With him on the brief was Paul E. Lehner.
Barbara Van Gelder and Scott M. McCaleb entered appear-
ances.

Before: ROGERS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
Dissenting opinion filed by Circuit Judge GARLAND.
ROBERTS, Circuit Judge: Relator Edward Totten brought a
qui tam action against Bombardier Corporation and Enviro-
vac, Inc., alleging that those companies violated the False
Claims Act, 31 U.S.C. § 3729, by delivering allegedly defec-
tive rail cars to the National Railroad Passenger Corporation
(Amtrak) and submitting invoices to Amtrak for payment
from an account that included federal funds. The pertinent
provision of the Act imposes liability for civil penalties and
treble damages on anyone who ‘‘knowingly presents, or
causes to be presented, to an officer or employee of the
United States Government TTT a false or fraudulent claim for
payment or approval.’’ Id. § 3729(a)(1). Amtrak is not the
Government, 49 U.S.C. § 24301(a)(3), and Totten alleged only
that the funds Amtrak used to pay Bombardier and Enviro-
vac came in part from the Government — not that those
companies presented their claims to an officer or employee of
the Government. The district court accordingly dismissed
Totten’s complaint. We agree that under the plain language
of Section 3729(a)(1), claims must be presented to an officer
or employee of the Government before liability can attach.
We therefore affirm.
 3

I.
This is Totten’s second appeal in this case; the facts are
summarized in our opinion in the first, United States ex rel.
Totten v. Bombardier Corp., 286 F.3d 542, 545 (D.C. Cir.
2002) (Totten I):
The dispute giving rise to this case began when Am-
trak contracted with two private companies, Bombardier
Corporation and Envirovac, Inc. (‘‘the Contractors’’), to
supply rail cars with new toilet systems for its trains.
Bombardier makes the cars and Envirovac makes the
toilets. Specifications for the toilet systems were incor-
porated into Amtrak’s contracts with the Contractors.
On March 16, 1998, Totten, a former Amtrak employee,
filed a suit against the Contractors under the [False
Claims Act], alleging that they had supplied unsuitable
parts that did not meet the contractual specifications.
According to Totten’s amended complaint, Bombardier and
Envirovac are liable under the False Claims Act because they
submitted periodic invoices to Amtrak for noncompliant rail
cars and Amtrak paid the invoices with funds that included
federal grant money.
The district court dismissed the complaint at the threshold,
concluding that 49 U.S.C. § 24301(a) — which states that
Amtrak ‘‘shall not be subject to title 31’’ — bars False Claims
Act suits that involve claims made to Amtrak. United States
ex rel. Totten v. Bombardier Corp., 139 F. Supp. 2d 50, 54
(D.D.C. 2001). This court reversed and remanded, holding
that Section 24301(a) is not a bar to False Claims Act suits
against those who submit claims to Amtrak: in such cases, we
reasoned, it is the claimant — not Amtrak — that is rendered
‘‘subject to’’ the Act. Totten I, 286 F.3d at 548, 550. The
court in Totten I ‘‘express[ed] no opinion’’ on another thresh-
old question in the case: ‘‘whether [a False Claims Act]
plaintiff may prevail against a defendant who submits a false
‘claim’ to a federal grantee (such as Amtrak), without pre-
senting evidence that the claim was ever actually submitted to
the U.S. government.’’ Id. at 553.
 4

That question was the focus of the district court’s inquiry
on remand, after Totten amended his complaint. The court
again dismissed the action, noting that the amended com-
plaint alleged only that ‘‘the allegedly false claims in this case
were presented to and paid by Amtrak, not that the false
claims were presented to any federal officer or employee.’’
United States ex rel. Totten v. Bombardier Corp., No. 98-
0657, Mem. op. at 7 (D.D.C. Sept. 3, 2003). The district court
recognized that 31 U.S.C. § 3729(c) defines ‘‘claim’’ under the
Act to include claims made to a grantee if the Government
provides all or part of the money to pay the claim, but noted
that ‘‘Congress nevertheless did not remove the unambiguous
language requiring presentment to the United States’’ in
Section 3729(a)(1). Id. at 5. Totten now appeals, and the
Government has filed briefs and argued as amicus curiae in
support of Totten.1

II.

A. Amtrak is Not the Government
Totten — but not the Government — argues that the
allegedly false claims in this case were presented to the
Government, because Amtrak was a mixed-ownership govern-
ment corporation prior to December 1997 and the Govern-
ment has continued to hold all of Amtrak’s preferred stock,
and has provided sizable subsidies to Amtrak, since that date.
Totten Br. at 6. This argument is unavailing.2
1 The statute governing qui tam actions under the False Claims

Act allows the Government to intervene in the district court and
take over responsibility for conducting the litigation. See 31 U.S.C.
§ 3730(b)(2), (4)(A). In this case, the Government chose not to
intervene; for its part, Amtrak has not brought any action against
Bombardier or Envirovac for the fraud Totten alleges.
2It was also arguably not preserved for appeal, because it was
made only in the most cursory fashion in the district court. We
need not decide whether it was adequately preserved, because it
was in any event preserved only to fail.
 5

Even prior to 1997 — indeed, at all times since the compa-
ny was created in 1971 — Amtrak’s organic statute has flatly
stated that the company ‘‘is not a department, agency, or
instrumentality of the United States Government.’’ 49 U.S.C.
§ 24301(a)(3); see also Totten I, 286 F.3d at 544. In its brief,
the Government candidly concedes that ‘‘Congress has speci-
fied that Amtrak is not itself an agency of the Government.’’
Amicus Br. at 10. And in a case involving the provision that
is now Section 24301, the Supreme Court deemed the statute
‘‘assuredly dispositive of Amtrak’s status as a Government
entity for purposes of matters that are within Congress’s
control.’’ Lebron v. National R.R. Passenger Corp., 513 U.S.
374, 392 (1995); see also Totten I, 286 F.3d at 544–45 (citing
Lebron). Totten offers no reason, and we can think of none,
why False Claims Act coverage is not a matter ‘‘within
Congress’s control.’’
The case on which Totten relies, Rainwater v. United
States, 356 U.S. 590 (1958), is clearly distinguishable. Rain-
water held that the Commodity Credit Corporation was ‘‘part
of ‘the Government of the United States’ for purposes of the
False Claims Act,’’ id. at 592, but as the Court noted, the
statute in that case expressly provided that the Corporation
was ‘‘an ‘agency and instrumentality of the United States.’ ’’
Id. at 591 (quoting Commodity Credit Corporation Charter
Act, Pub. L. No. 80-806, § 2, 62 Stat. 1070 (1948)). Amtrak’s
statute, of course, gives Amtrak the exact opposite status.
Attempts to analogize the other facts in Rainwater — that all
of the Commodity Credit Corporation’s employees were em-
ployees of the U.S. Department of Agriculture, and that the
entire budget of the Corporation came from the federal
treasury, see id. — are similarly fruitless.
B. Section 3729(a)(1) Requires Presentment to an Officer
or Employee of the Government
1. Totten, now with the support of the Government, ad-
vances an alternative argument: that a claim submitted to
Amtrak is effectively a claim presented to the Government.
Thus Totten asserts that ‘‘the [False Claims Act] covers
claims presented to grantees,’’ Totten Br. at 21; see also
 6

Reply Br. at 2, and relies on dicta from United States ex rel.
Yesudian v. Howard University, 153 F.3d 731, 738 (D.C. Cir.
1998), which suggest that claims presented to grantees may
be considered ‘‘ ‘effectively’ presented to the United States’’ if
the claims are paid with funds the grantee received from the
Government. See Totten Br. at 13; see also Amicus Br. at 18
(quoting Yesudian).
Totten and the Government are unable to refute Enviro-
vac’s argument that their reading of the statute would ‘‘write
the clear unambiguous language of Section 3729(a)(1) entirely
out of the Act.’’ Envirovac Br. at 9; see also Bombardier Br.
at 10–11. Liability under Section 3729(a)(1) arises when any
person ‘‘knowingly presents, or causes to be presented, to an
officer or employee of the United States Government TTT a
false or fraudulent claim for payment or approval,’’ 31 U.S.C.
§ 3729(a)(1) (emphasis added); Totten and the Government
offer no plausible explanation for how presentment of a claim
to Amtrak can satisfy the clear textual requirement that a
claim be presented to a federal officer or employee. Instead,
they shift to a textual argument of their own, arguing that a
presentment requirement in Section 3729(a)(1) would be ‘‘in-
consistent with the plain language of [Section] 3729(c).’’ Ami-
cus Br. at 9; see also Reply Br. at 2.
Section 3729(c) defines a claim to include a request or
demand for payment made to a grantee ‘‘if the United States
Government provides any portion of the money or property
which is requested or demanded, or if the Government will
reimburse TTT [the] grantee TTT for any portion of the money
or property which is requested or demanded.’’ 31 U.S.C.
§ 3729(c). A presentment requirement in Section 3729(a)(1),
the argument goes, would mean that False Claims Act liabili-
ty for claims submitted to grantees would attach only if the
claims are presented for reimbursement, and thus would
‘‘render[ ] the first ‘if’ clause meaningless.’’ Amicus Br. at 13.
Not at all. It is quite easy to square the language of
Section 3729(c) — including both ‘‘if’’ clauses — with the
presentment requirement in Section 3729(a)(1). The first ‘‘if’’
clause defines a claim to include claims submitted to grantees
 7

if the Government ‘‘provides’’ any portion of the funds used to
pay the claim. In a rhetorical sleight of hand, the Govern-
ment urges that this clause must reach any claim where the
money ‘‘has already been or is being provided by the Federal
Government.’’ Id. (emphasis added). Such a reading equates
the present-tense ‘‘provides’’ in the statute with the past-
tense ‘‘has provided’’ in the argument — and thereby runs
afoul of the Supreme Court’s admonition that ‘‘Congress’ use
of a verb tense is significant in construing statutes.’’ United
States v. Wilson, 503 U.S. 329, 333 (1992).
The word ‘‘provides’’ in Section 3729(c), when appropriately
limited to the present tense, squares neatly with a present-
ment requirement. False Claims Act liability will attach if
the Government provides the funds to the grantee upon
presentment of a claim to the Government. Liability will
also attach if, after the grantee presents the claim, the
Government provides the funds directly to the claimant: the
first ‘‘if’’ clause of subsection (c) — unlike the second — does
not circumscribe the set of possible recipients of the federal
funds. And under the second ‘‘if’’ clause, liability will attach
if the Government — again, upon presentment of the claim —
reimburses the grantee for funds that the grantee has already
disbursed to the claimant. Nothing about the language of
subsection (c) requires ignoring that of subsection (a)(1) to
make sense of the statute.3
3 Although the dissent ultimately does not challenge our reading
of subsection (a)(1), it does dispute this explanation of how (a)(1)
and (c) can be read together, in the course of pressing its theory
that (a)(2) does not require presentment. See post at 15–16.
According to the dissent, we are wrong to say that ‘‘False Claims
Act liability will attach if the Government provides the funds to the
grantee upon presentment of a claim to the Government,’’ because
the italicized language does not appear in subsection (c). See id. at
16. Of course it does not: our point was not to suggest that
subsection (c) itself contains a presentment requirement — it is,
after all, a definitional rather than a liability provision — but
instead to respond to the erroneous contention that a presentment
requirement was somehow inconsistent with the definition of a claim
in subsection (c).
 8

Indeed, Totten and the United States never connect the
dots in their argument based on subsection (c). Whatever
that argument may show about what constitutes a ‘‘claim,’’ it
does not respond to the plain requirement of subsection (a)(1)
that, to be actionable under the False Claims Act, any such
claim must be presented to an officer or employee of the
United States Government. As Judge Randolph noted in
Totten I, it is clear on the face of the statute that ‘‘no matter
how ‘claim’ is defined, subsection (a)(1) requires the alleged
false claimant to present it (or cause it to be presented) to a
federal officer or employee.’’ 286 F.3d at 554 (Randolph, J.,
concurring).
2. In Yesudian, the court considered the present question,
but expressly concluded that it ‘‘need not resolve that ques-
tion today.’’ 153 F.3d at 739. That was because the issue in
Yesudian was not liability under the False Claims Act for
false claims, but whether an employer retaliated against an
employee for filing a qui tam action under the Act. Such
retaliation, the Yesudian court concluded, could be shown
without establishing that the qui tam plaintiff would have
prevailed in his suit. Id.; see Totten I, 286 F.3d at 546
(‘‘Neither this court nor the Supreme Court has definitively
explicated the complex relationship between the definition
clause in § 3729(c) and the presentment clause in
§ 3729(a)(1);’’ Yesudian ‘‘declined to answer’’ the question).
The Yesudian court noted that the statutory language could
be read to require presentment to the United States, but also
surmised — relying on the legislative history of the 1986
amendments to the False Claims Act, see 153 F.3d at 737–
39 — that it was ‘‘also possible to read the language to cover
claims presented to grantees, but ‘effectively’ presented to
the United States because the payment comes out of funds
the federal government gave the grantee,’’ id. at 738. Now
that the question is which interpretation is correct, as op-
posed to whether either is arguable, we adhere to the plain
language of the statute, rather than invoke the legislative
history to embrace a reading at odds with the statutory text.
As an initial matter, the Supreme Court reiterated as
recently as this past Term that resort to legislative history is
 9

not appropriate in construing plain statutory language.
‘‘[W]hen the statute’s language is plain, the sole function of
the courts — at least where the disposition required by the
text is not absurd — is to enforce it according to its terms.’’
Lamie v. United States Tr., 124 S. Ct. 1023, 1030 (2004)
(quoting Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000)); see also Ratzlaf v. United
States, 510 U.S. 135, 147–48 (1994) (courts should ‘‘not resort
to legislative history to cloud a statutory text that is clear’’);
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 808–09
n.3 (1989) (‘‘Legislative history is irrelevant to the interpreta-
tion of an unambiguous statute.’’).
Totten and the United States do not suggest that the
language of Section 3729(a)(1) is somehow not plain; they
merely argue that a plain language reading would yield
results at variance with the legislative history of the 1986
amendments. Given that we are dealing with plain language,
however, there is no way to ‘‘construe’’ the language so that it
is satisfied when claims are presented to Amtrak. We could
say that submitting a claim to Amtrak is ‘‘just like’’ or
‘‘equivalent to’’ or ‘‘effectively’’ submitting a claim to ‘‘an
officer or employee of the United States Government,’’ and
that subsection (a)(1) is therefore satisfied, but those would
just be different ways of saying that we are not going to read
(a)(1) as written by Congress. ‘‘There is a basic difference
between filling a gap left by Congress’ silence and rewriting
rules that Congress has affirmatively and specifically enact-
ed.’’ Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625
(1978). Totten and the United States imply that the asserted
variance with the legislative history empowers us to ignore
the plain language of subsection (a)(1), but such extraordinary
power is limited to the situation in which adherence to the
plain text leads to an ‘‘absurd’’ result, see, e.g., Lamie, 124 S.
Ct. at 1030, and no one has suggested that to be the case
here.
None of this is to gainsay the argument based on the
legislative history, ably advanced (and suitably, given the
nature of the question presented) in Yesudian. But there
would be no need for a rule — or repeated admonition from
 10

the Supreme Court — that there should be no resort to
legislative history when language is plain and does not lead to
an absurd result, if the rule did not apply precisely when
plain language and legislative history may seem to point in
opposite directions.
Totten and the United States argue that adhering to the
plain language would leave intact opinions Congress intended
to overrule in the 1986 amendments, but that is not clear with
respect to the decision that the Senate Judiciary Committee
most clearly intended to overrule — United States v. Azzarel-
li Construction Co., 647 F.2d 757 (7th Cir. 1981). See S. REP.
NO. 99-345, at 22 (1986) (S. REP.). Azzarelli held that because
the federal funds at issue were part of a ‘‘fixed and determi-
nate yearly contribution’’ rather than an ‘‘open-ended federal
expenditure program,’’ the False Claims Act did not apply.
Azzarelli, 647 F.2d at 761; see S. REP. at 15, 22 (describing
Azzarelli’s holding). Under our reading of subsections (a)
and (c) of Section 3729, the fixed nature of a federal grant
would be no bar to a claimant’s liability; such liability would
turn on whether the Government ‘‘provides’’ the funds — in a
fixed or variable amount — upon presentment of a claim to
the Government. In fact, this presentment requirement was
satisfied in Azzarelli: the payment scheme clearly required
the state to present to the Government claims for reimburse-
ment after it paid the contractors’ fraudulent claims. See 647
F.2d at 760.
Totten and the United States may be on firmer ground
with respect to some of the other cases with which the
Committee expressed displeasure. But our point is not to
debate the legislative history; rather, ‘‘[t]hese uncertainties
illustrate the difficulty of relying on legislative history TTT
and the advantage of our determination to rest our holding on
the statutory text.’’ Lamie, 124 S. Ct. at 1034. And whatev-
er degree of confidence about congressional purpose one
derives from the legislative history, that purpose must find
expression ‘‘within the permissible limits of the language’’
before it can be given effect. HENRY J. FRIENDLY, BENCHMARKS
216 (1967).
 11

At its most broad, the legislative history of the 1986
amendments declares that ‘‘a false claim is actionable al-
though the claims or false statements were made to a party
other than the Government, if the payment thereon would
ultimately result in a loss to the United States.’’ S. REP. at
10. Even if the Committee ‘‘intended the concept of loss to
the United States to be considered broadly,’’ Yesudian, 153
F.3d at 739, ‘‘no legislation pursues its purposes at all costs,’’
Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397, 408 (D.C.
Cir. 1997) (quoting Rodriguez v. United States, 480 U.S. 522,
525–26 (1987)) (internal quotation marks omitted). The task
of statutory interpretation cannot be reduced to a mechanical
choice in which the interpretation that would advance the
statute’s general purposes to a greater extent must always
prevail over one that would both advance the same ends —
though to a slightly lesser extent — and have fewer draw-
backs. See BP West Coast Prods., LLC v. FERC, 374 F.3d
1263, 1292–93 (D.C. Cir. 2004) (statutory objective of provid-
ing tax incentives for certain pipeline owners does not mean
all interpretive questions should be resolved in favor of
whatever results in most favorable tax treatment for such
owners) (citing Michigan v. EPA, 268 F.3d 1075, 1084 (D.C.
Cir. 2001)). Nothing in the legislative history of the 1986
amendments suggests that the present False Claims Act is, to
borrow a phrase from another context, ‘‘the product of mono-
maniacs.’’ Student Loan Mktg. Ass’n, 104 F.3d at 408.
What is more, if the overriding intent of Congress were in
fact to delete the requirement that claims be presented to a
Government officer or employee, Congress could readily have
done just that — amend subsection (a)(1) to provide that
claims be presented to the Government or a grantee or
recipient of Government funds. But Congress did not touch
(a)(1) at all in 1986. Congress proceeded quite elliptically if
its intent were to eliminate the requirement of presentment
to the Government in the case of claims against grantees.
In the final analysis, we can remain agnostic on the ques-
tion whether Congress intentionally left the presentment
requirement in Section 3729(a)(1) or simply forgot to take it
out. The suggestion that Congress may have ‘‘dropped a
 12

stitch,’’ Yesudian, 153 F.3d at 738, is not enough to permit us
to ignore the statutory text. The Supreme Court reminded
us in the Term just ended that ‘‘ ‘[i]t is beyond our province
to rescue Congress from its drafting errors, and to provide
for what we might think TTT is the preferred result.’ ’’ La-
mie, 124 S. Ct. at 1034 (quoting United States v. Granderson,
511 U.S. 39, 68 (1994) (Kennedy, J., concurring)) (ellipsis in
Lamie); see also Consolidated Rail Corp. v. United States,
896 F.2d 574, 579 (D.C. Cir. 1990) (courts are generally not
‘‘free to ‘correct’ what they believe to be congressional over-
sights by construing unambiguous statutes to the contrary of
their plain meaning’’).
There are good reasons for this rule; a court’s attempt to
correct a statute can often create new problems. At least
three complications could flow from the proposed correction.
First, as Judge Randolph observed in Totten I, extending
False Claims Act liability here seems to result in quadruple
liability for false claimants: a grantee could presumably bring
suit and obtain a recovery for itself, in addition to the treble
damages the Government and the relator divvy up under the
Act. See 286 F.3d at 554 (Randolph, J., concurring). Tot-
ten’s response — ‘‘So be it,’’ Opposition to Mots. to Dismiss at
30 — is candid but not reassuring.
Second, authorizing suit on behalf of an entity to which a
claim was not presented raises complicated questions in ap-
plying the statute’s scienter requirement: if the claimant has
told the grantee pertinent facts that would, in the absence of
such disclosure, make a claim fraudulent, it seems that the
claimant has not ‘‘knowingly’’ presented a false claim to the
grantee. See, e.g., United States ex rel. Durcholz v. FKW
Inc., 189 F.3d 542, 545 (7th Cir. 1999) (‘‘[T]he government’s
knowledge effectively negates the fraud or falsity required by
the [Act].’’). But see United States ex rel. Hagood v. Sonoma
County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991)
(‘‘The requisite intent is the knowing presentation of what is
known to be false. That the relevant government officials
know of the falsity is not in itself a defense.’’). It is unclear
how to apply the ‘‘knowingly presents’’ element when the
Government itself (or a relator) brings suit for claims made to
 13

a grantee, if there is no longer any requirement of present-
ment to the Government.
Third, an ‘‘effective’’ presentment approach would make the
potential reach of the Act almost boundless: for example,
liability could attach for any false claim made to any college
or university, so long as the institution has received some
federal grants — as most of them do. The Yesudian court
recognized this concern:
It may be that this reading TTT should not apply to all
grantees. It may not be appropriate, for example, where
the grantee’s federal funds are an insubstantial percent-
age of its total budget, where there is little likelihood
that any of a defendant’s money actually came from the
federal grant, or where there is little continuing contact
between the grantee and the government once the grant
is made.
153 F.3d at 738. Such an imprecise line of demarcation,
however, seems little more than a prescription for even more
collateral litigation under the False Claims Act.
Our point is not that these problems would inevitably arise.
It is instead that the prospect of them, and others we have
not anticipated, reminds us that our job is reading statutes as
written, not rewriting them ‘‘in an effort to achieve that which
Congress is perceived to have failed to do.’’ United States v.
Locke, 471 U.S. 84, 95 (1985).

III.
A.
Our dissenting colleague prefers to sidestep the question
whether Section 3729(a)(1) requires presentment and rest his
decision instead on subsection (a)(2). That provision is direct-
ed at those who make false statements to get the Government
to pay false claims, and has no express requirement of
presentment to an officer or employee of the United States
Government. None of the parties argued that subsection
(a)(2) could provide the grounds for resolving this case during
the six years the case was pending before reaching us for oral
 14

argument: not in the first round of litigation that included
the appeal to this court in Totten I, not in the district court
below on remand, and not in the initial briefing on this
appeal. See Totten Suppl. Br. at 1 (‘‘Neither side had ad-
dressed [the possible application of subsection (a)(2) instead
of (a)(1)] in the court below or in the briefs submitted to this
Court.’’).
Ordinarily, arguments that parties do not make on appeal
are deemed to have been waived. See, e.g., Ark Las Vegas
Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003)
(argument petitioner raised for first time at oral argument is
‘‘waived because it was not raised in [petitioner’s] briefs’’);
Narragansett Indian Tribe v. National Indian Gaming
Comm’n, 158 F.3d 1335, 1338 (D.C. Cir. 1998) (‘‘[W]e ordinari-
ly do not entertain arguments not raised by parties’’); Dis-
trict of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084
(D.C. Cir. 1984) (under ‘‘well settled’’ rule, ‘‘issues and legal
theories not asserted at the District Court level ordinarily will
not be heard on appeal’’). The court has authority to remedy
errors sua sponte in ‘‘exceptional circumstances’’ — when
they ‘‘seriously affect the fairness, integrity, or public reputa-
tion of judicial proceedings,’’ United States v. TDC Mgmt.
Corp., 288 F.3d 421, 425 (D.C. Cir. 2002) (quotation omit-
ted) — but no one has suggested that this is such a case. A
party’s failure to pursue one of several available lines of
argument is hardly an ‘‘error’’ of the sort that would warrant
exercising our narrowly circumscribed remedial authority.
We regularly attempt to avoid constitutional questions by
resting decision on a statutory basis, see Ashwander v. Ten-
nessee Valley Auth., 297 U.S. 288, 345–48 (1936), but there is
no comparable doctrine that would favor avoiding one ques-
tion of statutory interpretation — the one litigated by the
parties that was the basis for decision below — by proposing,
and then answering, a different one not posed by the parties
or addressed by the district court. Even if such a ‘‘statutory
avoidance’’ doctrine existed, it is difficult to see why we would
invoke it in this case: the proper construction of Section
 15

3729(a)(2) seems harder, not easier, than that of Section
3729(a)(1).4
The dissent chides us for responding to its analysis of
(a)(2), but a response is appropriate given the dissent’s deter-
mination to embrace a reading of (a)(2) that would render the
plain language reading of (a)(1) largely meaningless. In
short, we would prefer not to reach an issue the parties did
not in the six previous years of litigation, but now that the
dissent insists on putting it on the table, we are obliged to
explain why the proper resolution of that issue does not
undermine our reading of (a)(1) — the issue the parties did
raise, and which was decided below.

B.
The dissent’s effort to avoid deciding the presentment issue
by looking to Section 3729(a)(2) is ultimately unavailing —
which may explain why the approach was never suggested by
appellant, appellees, amicus, or the district court. Making
false records or statements to get a false claim paid or
approved by Amtrak is not making or using ‘‘a false record or
statement to get a false or fraudulent claim paid or approved
by the Government,’’ 31 U.S.C. § 3729(a)(2) (emphasis added).
We are apparently in agreement with the dissent that
Amtrak is not ‘‘the Government’’ for False Claims Act pur-
poses. See supra at 4–5. But in concluding that Section
3729(a)(2) reaches the alleged false statements in this case —
4 The cases the dissent cites to rebut this point, see post at 3 &
n.3, are far afield. Resting on (a)(1) would not implicate an
antecedent but unaddressed issue, as in United States National
Bank of Oregon vs. Independent Insurance Agents of America, 508
U.S. 439, 447 (1993), nor is the (a)(2) issue one that has arisen
because of an intervening decision of this court, as in Acree v.
Republic of Iraq, 370 F.3d 41, 58 (D.C. Cir. 2004). Finally, in
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1030
(D.C. Cir. 2004), a sovereign defendant had failed to appear alto-
gether. The Cicippio court’s decision to order briefing on certain
questions sua sponte has no relevance to this case, in which Totten
has litigated vigorously — but not at all on (a)(2).
 16

statements that induced Amtrak to pay false claims — the
dissent finds that payment by Amtrak is payment ‘‘by the
Government’’ because some of the funds came from a federal
grant to Amtrak. As support for this reading, the dissent
points to Section 3729(c), which, as we have seen, provides
that the term ‘‘claim’’ includes requests made to grantees and
other recipients ‘‘if the United States Government provides
any portion of the money or property which is requested or
demanded, or if the Government will reimburse [the recipi-
ent] for any portion of the money or property.’’ Id.
§ 3729(c). In short, the dissent believes that Section 3729(c)
collapses the distinction between the Government and its
grantees where liability under Section 3729(a)(2) — but ap-
parently not under Section 3729(a)(1) — is concerned. Tot-
ten and the Government advanced the same view, when
prodded by our order requesting supplemental briefing on
the (a)(2) question. Totten Suppl. Br. at 13 (‘‘The import of
Section 3729(c) is that it broadens who constitutes the Gov-
ernment under the False Claims Act.’’); Amicus Suppl. Br. at
12–13 (‘‘[A] claim is paid ‘by the Government’ either if the
government pays it directly or if the money is disbursed by a
third-party funding recipient who receives from the govern-
ment all or part of the funding for the payment’’).
This reading has a fatal flaw: it yields exactly the same
meaning that would result if Section 3729(a)(2) did not contain
the words ‘‘by the Government’’ at all. If Congress had
intended to predicate liability under subsection (a)(2) on
payment or approval either by the Government itself or by a
grantee using federal funds, then a reference to false records
or statements made ‘‘to get a false or fraudulent claim paid or
approved’’ would have been enough. That is exactly what
subsection (a)(2) provided before the 1986 amendments. By
adding subsection (c) in 1986 to provide that ‘‘claim’’ included
claims against a grantee or recipient, Congress arguably
could have achieved the result for which Totten and the
Government contend simply by leaving (a)(2) untouched.
Congress did not do that. At the same time it added
subsection (c), Congress added the words ‘‘by the Govern-
ment’’ to (a)(2). False Claims Amendments Act of 1986, Pub.
 17

L. No. 99-562, § 2(3), (7), 100 Stat. 3153, 3153–54. Notably,
Congress did not say ‘‘by the Government or a grantee,
contractor, or other recipient as provided in subsection (c) of
this section.’’5
It is, of course, a ‘‘cardinal principle of statutory construc-
tion that a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall
be superfluous, void, or insignificant.’’ Alaska Dep’t of Envtl.
Conservation v. EPA, 124 S. Ct. 983, 1002 n.13 (2004) (quota-
tion omitted); see also Hibbs v. Winn, 124 S. Ct. 2276, 2286
(2004) (‘‘rule against superfluities’’ bars a reading that would
have one of several words in statutory provision ‘‘do all the
necessary work’’); Duncan v. Walker, 533 U.S. 167, 174
(2001). Moreover, ‘‘[w]hen Congress acts to amend a statute,
we presume it intends its amendment to have real and
substantial effect.’’ Stone v. INS, 514 U.S. 386, 397 (1995).
The intended effect of adding ‘‘by the Government’’ at the
same time as subsection (c) is fairly obvious: Congress was
referring back to the presentment requirement of Section
3729(a)(1). And in so doing, Congress was reinforcing —
rather than abandoning — the distinction between the Gov-
ernment and its grantees that might otherwise have been
blurred by the addition of Section 3729(c).6
5 The dissent purports to make a plain language argument, but

has to alter the statutory words to make its point, asserting that
‘‘paid by the Government’’ means ‘‘paid with government money.’’
See post at 6–7. The statute does not talk of ‘‘government money’’
or, the term the dissent employs elsewhere, ‘‘federal monies.’’ It
speaks of claims ‘‘presented TTT to an officer or employee of the
United States Government TTT for payment or approval’’ and claims
‘‘paid or approved by the Government.’’
6 The dissent’s suggestion that ‘‘by the Government’’ was added
to clarify that the Act reaches false claims only where the Govern-
ment ‘‘directly or indirectly provides the funds and suffers the loss,’’
post at 9 n.8, does not hold up; the definition of ‘‘claim’’ already
contains that limitation. See 31 U.S.C. § 3729(c). The dissent is
unwilling to give the addition of ‘‘by the Government’’ to (a)(2) any
weight because it cannot find a statement in any committee report
explaining what Congress intended to accomplish by that amend-
 18

The parallel structure of (a)(1) and (a)(2) strongly supports
this interpretation. Subsection (a)(1) refers to presenting
claims to the Government for ‘‘payment or approval;’’ subsec-
tion (a)(2) to making false statements to get claims ‘‘paid or
approved by the Government.’’ As it turns out, that parallel
structure is no accident. Prior to 1982, the liability provisions
of the False Claims Act were contained in one unwieldy
sentence that had survived, with only minor modifications,
since the Act’s enactment in 1863:
Any person TTT who shall make or cause to be made, or
present or cause to be presented, for payment or approv-
al, to or by any person or officer in the civil, military, or
naval service of the United States, any claim upon or
against the Government of the United States, TTT know-
ing such claim to be false, fictitious, or fraudulent, or
who, for the purpose of obtaining or aiding to obtain the
payment or approval of such claim, makes, uses, or
causes to be made or used, any false bill, receipt, vouch-
er, roll, account, claim, certificate, affidavit, or deposition,
knowing the same to contain any fraudulent or fictitious
statement or entry TTT shall forfeit and pay to the
United States the sum of $2,000, and, in addition, double
the amount of damages which the United States may
have sustainedTTTT
31 U.S.C. § 231 (1976) (emphasis added).
In 1982, Congress undertook a comprehensive revision of
Title 31 of the U.S. Code and substituted ‘‘simple language
TTT for awkward and obsolete terms.’’ H.R. REP. NO. 97-651,
at 1 (1982). As part of this revision, the single interminable
sentence constituting the False Claims Act (of which only a

ment. See post at 9. But statutory language cannot be slighted
simply because it is not addressed in legislative history. See, e.g.,
New York v. FERC, 535 U.S. 1, 20–21 (2002). The case cited by the
dissent — Cook County, Illinois v. United States ex rel. Chandler,
538 U.S. 119 (2003) — rejected an argument that Congress accom-
plished a significant change without discussion. The presentment
requirement, however, has been in the statute for 140 years. The
addition of ‘‘by the Government’’ did not change but confirmed that.
 19

small portion is quoted above) was divided into the numbered
subsections of Section 3729(a). Congress made it extremely
clear, however, that the bill ‘‘ma[de] no substantive change in
the law.’’ Id. at 3; see also id. at 1 (‘‘The purpose of the bill
is to restate in comprehensive form, without substantive
change, TTT laws related to money and finance’’); id. at 2 (‘‘In
making changes in the language, precautions have been taken
against making substantive changes in the law.’’).
The present Section 3729(a)(2), therefore, is the direct
descendant of a clause that could only be read in conjunction
with what is now Section 3729(a)(1): the reference to ‘‘such
claim’’ was a shorthand reference to the claim already identi-
fied in the current subsection (a)(1) — that is, a claim that
would be presented or caused to be presented to the United
States.7 The legislative history even explains why the word
‘‘such’’ disappeared from the statute: Congress removed it in
light of the general purpose of the 1982 revision — to make
the statute more readable. See id. at 3 (‘‘The word ‘such’ is
[no longer] used as a demonstrative adjective.’’).
The dissent reads the 1982 revision to effect a significant
substantive change. Rather than accepting that ‘‘paid or
approved’’ in subsection (a)(2) is an invocation of ‘‘payment or
approval’’ in (a)(1), the dissent seizes onto the absence of any
discussion of presentment in subsection (a)(2) and concludes
that Congress had a wholly different type of liability in
mind — one in which presentment of a claim is irrelevant, so
long as a defendant happens to have made a false record or
statement. The various subsections of Section 3729(a) must
of course be read disjunctively, because the word ‘‘or’’ ap-
7 The dissent offers a different interpretation of ‘‘such claim,’’
arguing that it refers to a ‘‘claim upon or against the Government of
the United States’’ rather than to a claim presented to the United
States. See post at 12–13 & n.11. Within the framework of the
pre–1982 version of the statute, we fail to see how the dissent’s
reading is any different from our own: a claim could not be upon or
against the Government unless it was presented to the Government.
The parallel between presented to the Government for payment or
approval and paid or approved by the Government confirms the
point.
 20

pears between subsections (a)(6) and (a)(7), but that word is
not a license to ignore the provenance of subsection (a)(2) in
construing what ‘‘paid or approved by the Government’’ in
that subsection means. See 2A NORMAN J. SINGER, STATUTES
AND STATUTORY CONSTRUCTION § 46:05, at 165–66 (6th ed. 2000)
(‘‘[A] statutory subsection may not be considered in a vacuum
TTT; courts should not rely too heavily upon characterizations
such as ‘disjunctive’ ’’) (footnote omitted).
To the extent that the Government buttresses its reading
of Section 3729(a)(2) with citations to the legislative history of
the 1986 amendments, see, e.g., Amicus Suppl. Br. at 13, such
reliance is gravely misplaced: the Senate report was based on
a version of the bill that did not yet include the provision
adding the words ‘‘by the Government’’ to subsection (a)(2).
See S. REP. at 39. It thus makes little sense to protest that
giving effect to those restrictive words would run counter to
some of the report’s sweeping explanations of the Senate
Judiciary Committee’s intent.
The proposition that subsection (a)(2) harkens back to
(a)(1), and that the latter requires presentment, is supported
in scholarly commentary on the False Claims Act. A leading
treatise on the False Claims Act states that ‘‘[t]he three
requirements of Section [3729](a)(1)’’ — including the require-
ment ‘‘that a claim be presented to the United States’’ — are
‘‘still applicable’’ to Section 3729(a)(2). 1 JOHN T. BOESE, CIVIL
FALSE CLAIMS AND QUI TAM ACTIONS § 2.01[B], at 2-21 (2d ed.
Supp. 2004-1). The dissent’s contrary conclusion — that
subsection (a)(2) does not require any presentment that may
be required under subsection (a)(1) — has tellingly little
support.
The dissent’s reading of (a)(2) would make the presentment
requirement in (a)(1), which the dissent does not challenge
head-on, largely meaningless. In most cases false records or
statements are made or used to get false claims paid or
approved. If the dissent’s view prevailed, the plain language
requirement in (a)(1) that claims be presented to an officer or
employee of the Government would only trip up those foolish
enough to rely on (a)(1) rather than (a)(2) — and even they
 21

might find a court willing to excuse their omission. The
dissent candidly views this as all well and good — a way of
‘‘reconciling § 3729(a) as a whole with § 3729(c) and the
legislative history,’’ post at 2 — but it is not our task to find
ways of circumventing plain statutory language.8 Allowing
(a)(2) to swallow (a)(1) is particularly egregious, since it
seems clear that (a)(2) is complementary to (a)(1), designed to
prevent those who make false records or statements to get
claims paid or approved from escaping liability solely on the
ground that they did not themselves present a claim for
payment or approval. See United States ex. rel. Harris v.
Bernad, 275 F. Supp. 2d 1, 6 (D.D.C. 2003) (‘‘the main
purpose of section 3729(a)(2) is to remove any defense that
the defendants themselves did not submit false claims to the
government’’) (citing BOESE, supra, at § 2.01[B]). This is
presumably why (a)(2) was not argued by the parties
throughout this litigation. To the extent the dissent’s reading
of (a)(2) does not completely swallow (a)(1), it leads to an
anomalous result: a defendant who makes a false record to
help someone else get a false claim paid or approved by a
grantee would be covered by the Act, but a defendant who
actually presents a false claim to the grantee for payment or
approval would not be.
The dissent seems to recognize that a false record cannot
be said to be used to get the Government to ‘‘approve’’ a
claim if the Government has no role to play because there is
no presentment, but contends that the situation is very
different under the payment prong of (a)(2). See post at 5–6.
But under that prong as well the false record does not
prompt any action ‘‘by the Government’’ under the dissent’s
8 The dissent asserts that it is not guilty of this transgression
because there is no plain language presentment requirement in
(a)(2). See post at 2 n.2. This misses the point: there is a plain
language presentment requirement in (a)(1) and the dissent’s read-
ing of (a)(2) would circumvent that. Elsewhere the dissent recog-
nizes that ‘‘words of a statute must be read in context and with a
view to their place in the overall statutory scheme.’’ See post at 14
(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000)).
 22

view, but only by the grantee or contractor. The dissent
hinges coverage on the presence of funds that can trace their
genealogy to the Government, without explaining the limits of
this non-statutory ‘‘federal monies’’ concept. If, as was actu-
ally largely the case here, see Decl. of Carol J. Dillon; Decl.
of Brian Adam, Amtrak pays Bombardier with proceeds from
a Canadian Export Development Corporation loan and an
Export Development Bank loan, and then repays the loans
with money from its capital budget, it is not clear that
Bombardier’s claims — as opposed to those of the Export
Corporation and Bank for repayment — are satisfied out of
federally provided funds. And it remains unclear whether
‘‘federal monies,’’ which apparently retain that character un-
der the dissent’s view even though no further government
role is involved, are still ‘‘federal monies’’ when passed along
to subgrantees or subcontractors, employees and suppliers of
subgrantees and subcontractors, and so on.9

***
The dissent literally begins and ends with legislative histo-
ry. See post at 1, 22–23. We will end as we began, too, but
with the statutory language: Section 3729(a)(1) imposes liabil-
ity on anyone who ‘‘knowingly presents, or causes to be
presented, to an officer or employee of the United States
Government TTT a false or fraudulent claim for payment or
approval.’’ That was not done here; claims were presented
only to Amtrak for payment or approval, and Amtrak is not
the Government. Section 3729(a)(2) imposes liability on any-
9 The policy concern that the Government invokes and that the
dissent repeats — that requiring presentment will ‘‘withdraw[ ]
False Claims Act protection’’ from a ‘‘broad swath of false claims,’’
see post at 23 (quoting U.S. Br. at 9) — rather plainly begs the
question. In addition, the Government is of course free to structure
its grants in such a way as to require presentment and thereby
trigger coverage under the False Claims Act, and often does so.
See, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 543
(1943) (‘‘It was a prerequisite to respondents’ payment by the
[grantee] that TTT estimates be filed, transmitted to, and approved
by, the [Government] authorities.’’).
 23

one who makes a false record or statement ‘‘to get a false or
fraudulent claim paid or approved by the Government.’’ That
too was not done here; the records were made to get claims
paid or approved by Amtrak, and Amtrak is not the Govern-
ment.
The judgment of the district court is affirmed.
 1

GARLAND, Circuit Judge, dissenting: The False Claims Act,
‘‘adopted in 1863 and signed into law by President Abraham
Lincoln in order to combat rampant fraud in Civil War
defense contracts,’’ S. Rep. No. 99-345, at 8 (1986), is the
‘‘Government’s primary litigative tool for combating fraud,’’
id. at 2. Today, the court adopts an interpretation that, the
government warns, leaves ‘‘vast sums of federal monies’’
without False Claims Act protection. Oral Arg. Tr. at 3.
Under the court’s interpretation, the government1 cannot
recover against a contractor that obtains money by present-
ing a false claim to a federal grantee — even if every penny
paid to the contractor comes out of an account comprised
wholly of federal funds — unless the grantee ‘‘re-presents’’
that false claim to a federal employee. Although Amtrak
receives billions of dollars in federal funds that it uses to pay
contractor invoices, because it does not (and is not required
to) re-present those invoices to the federal government, the
court’s ruling immunizes those who defraud even that govern-
ment-funded corporation from False Claims Act liability.
My colleagues concede that 31 U.S.C. § 3729(a)(2) ‘‘has no
express requirement of presentment to an officer or employee
of the United States Government.’’ Op. at 13. The court’s
interpretation of that subsection as requiring presentment is
thus inconsistent with its plain text — as well as with the
statutory definition of ‘‘claim’’ contained in § 3729(c). More-
over, the court’s interpretation is not just inconsistent, but
irreconcilable, with the legislative history of the 1986 Amend-
ments to the False Claims Act. See False Claims Amend-
ments Act of 1986, Pub. L. No. 99-562 § 2(c), 100 Stat. 3153
(Oct. 27, 1986) (hereinafter 1986 Amendments). The court
marches on nonetheless, surrounding itself on all sides with
‘‘canons’’ of statutory construction, which serve here as ‘‘can-
nons’’ of statutory destruction. Although I have no quarrel
1 Although in the instant case the plaintiff is a private ‘‘relator’’
suing in the name of the government, see 31 U.S.C. § 3730(b), the
statute authorizes the government to sue in its own name or to take
over a relator’s suit and conduct the action itself, see id.
§ 3730(b)(2), (b)(4)(A). The statute’s substantive provisions are the
same regardless of whether the government or a relator prosecutes
the action.
 2

with the canons the court has chosen, properly deployed they
do not support the position it has taken in this case.

I
I begin with a preliminary matter: I am perplexed by the
court’s long prologue protesting the propriety of deciding the
meaning of § 3729(a)(2), followed immediately by its decision
on that very issue. See Op. at Part III.A.
First, the rationale for exploring the meaning of subsection
(a)(2) is straightforward. As discussed in United States ex
rel. Yesudian v. Howard University, the conclusion that
liability under § 3729(a)(1) requires that a false claim be
presented to the government rather than a grantee is difficult
to reconcile with § 3729(c), and perhaps impossible to recon-
cile with the Act’s legislative history. 153 F.3d 731, 737-38
(D.C. Cir. 1998); see infra Parts III, IV. Nonetheless,
subsection (a)(1)’s language renders this reading ‘‘possible,’’
Yesudian, 153 F.3d at 738, and perhaps would not alone
warrant a dissent. As discussed below, however, what is a
plausible reading of subsection (a)(1) — given its ‘‘presents,
or causes to be presented’’ language — is not plausible for
subsection (a)(2), which contains no such language.
Moreover, even if subsection (a)(1) were read as imposing a
presentment requirement, reading subsection (a)(2) as not
also imposing such a requirement goes a long way toward
reconciling § 3729(a) as a whole with § 3729(c) and the
legislative history that indicates Congress intended to reach
false claims made to grantees.2 Hence, there is good reason
to interpret both subsections (a)(1) and (a)(2) at the same
time, because the reasonableness of the interpretation of the
former may rest on the meaning assigned to the latter.
Second, there is no procedural impropriety in deciding the
meaning of subsection (a)(2) here. The plaintiff’s com-
plaint — which the district court dismissed on the plead-
2 As discussed below, achieving such a reconciliation would not
‘‘circumvent[ ] plain statutory language,’’ Op. at 21, as there is no
language of presentment — ‘‘plain’’ or otherwise — in § 3729(a)(2).
 3

ings — was not limited to subsection (a)(1), but rather
asserted liability under ‘‘31 U.S.C. § 3729’’ in its entirety.
Am. Compl. ¶¶ 11, 63, 107. His district court pleadings were
more specific, charging a violation of ‘‘§§ 3729(a)(1) - (a)(3).’’
Pl.’s Opp’n to Mots. to Dismiss, at 2. Indeed, our own prior
decision in this case noted that ‘‘the sections relevant here’’
proscribe (inter alia) ‘‘ ‘false records or statements’ used to
induce [false] claims, see § 3729(a)(2).’’ United States ex rel.
Totten v. Bombardier, 286 F.3d 542, 551 (D.C. Cir. 2002)
(hereinafter Totten I).
Although initially the plaintiff did not separately address
the meaning of subsection (a)(2), he did argue that the False
Claims Act (FCA) does not contain a presentment require-
ment. See Appellant’s Br. at 5, 11-18, 21; Pl.’s Opp’n at 25-
30. After oral argument in this court, we ordered supple-
mental briefing specifically ‘‘addressing the application of 31
U.S.C. § 3729(a)(2) to this case.’’ Order (Apr. 20, 2004) (per
curiam). The issue has now been fully briefed, removing the
fairness concerns that ordinarily militate against entertaining
arguments not initially presented. See, e.g., Corson & Gru-
man Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) (‘‘We
require petitioners and appellants to raise all of their argu-
ments in the opening brief to prevent ‘sandbagging’ of appel-
lees and respondents and to provide opposing counsel the
chance to respond.’’). There is, therefore, no impediment to
our consideration of the meaning of subsection (a)(2).3
Finally, my colleagues simply ‘‘protest too much.’’ WILLIAM
SHAKESPEARE, HAMLET, act III, sc. 2. No one has compelled
3 See United States Nat’l Bank of Oregon v. Independent Ins.
Agents of Am., 508 U.S. 439, 445-48 (1993) (holding that this court
had authority, after ordering supplemental briefing, to decide the
validity of a statutory section despite the parties’ failure to dispute
it); Acree v. Republic of Iraq, 370 F.3d 41, 48, 58 (D.C. Cir. 2004)
(determining the validity of a cause of action, an issue not addressed
by the parties, after advising the parties that it would be addressed
at oral argument); Cicippio-Puleo v. Islamic Republic of Iran, 353
F.3d 1024, 1030 (D.C. Cir. 2004) (considering an issue not raised by
the parties after giving them an opportunity to submit supplemental
briefing).
 4

them to address this issue. If they truly thought that
determining the meaning of subsection (a)(2) were somehow
inappropriate, they could have resisted the temptation and
left the issue undecided.
Having dispensed with these preliminaries, I now proceed
directly to the question of whether liability under § 3729(a)(2)
of the False Claims Act requires presentment (or re-
presentment) of a claim to a government employee, rather
than to a grantee like Amtrak. Part II discusses the text of
subsection (a)(2), while Part III addresses the related text of
subsection (c). Part IV considers the legislative history of
the 1986 Amendments, and Part V reviews the various policy
arguments my colleagues advance in support of their position.

II
‘‘The starting point in discerning congressional intent is,’’ of
course, ‘‘the existing statutory text.’’ Lamie v. United States
Trustee, 124 S. Ct. 1023, 1030 (2004). Subsection (a)(2)
imposes liability on any person who ‘‘knowingly makes, uses,
or causes to be made or used, a false record or statement to
get a false or fraudulent claim paid or approved by the
Government.’’ 31 U.S.C. § 3729(a)(2); see id. § 3729(c) (de-
fining ‘‘claim’’ as, inter alia, ‘‘any request TTT for money TTT
which is made to a TTT grantee TTT if the United States
Government provides any portion of the money TTT which is
requested’’). As charged in the complaint, defendants Envi-
rovac and Bombardier made false statements in order to get
false claims paid with government money. Accordingly, de-
fendants’ conduct appears to fall within the proscription of
subsection (a)(2).

A
The court’s textual response to this argument is that the
defendants’ conduct does not fall within subsection (a)(2)
because the defendants presented their false claims to Am-
trak rather than to a government employee. It is true that a
different subsection — (a)(1) — does contain presentment
language. See 31 U.S.C. § 3729(a)(1) (imposing liability on
 5

anyone who ‘‘knowingly presents or causes to be presented, to
an officer or employee of the United States Government’’ a
false or fraudulent claim). Indeed, it is upon that language
that the court bases its conclusion that presentment is re-
quired for liability under subsection (a)(1). Op. at 2, 11-12.
As already noted, however, the court concedes that subsection
(a)(2) contains ‘‘no express requirement of presentment to an
officer or employee of the United States Government.’’ Id. at
13. And the absence of presentment language in (a)(2),
coupled with its presence in (a)(1), cannot help but call to
mind a traditional canon of construction: ‘‘[W]hen Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.’’ Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 452 (2002) (internal quotation marks
omitted); see Russello v. United States, 464 U.S. 16, 23 (1983)
(‘‘We refrain from concluding TTT that the differing language
in the two subsections has the same meaning in each.’’).4
Lacking any reference to presentment in subsection (a)(2),
the court contends that the words ‘‘by the Government’’ have
the same effect. But if Congress had meant the same thing,
it would have said the same thing. See id. The court might
yet have an argument if subsection (a)(2) were limited to false
claims ‘‘approved’’ by the government. But the subsection’s
4 The court also finds support for its presentment theory in what
it calls the ‘‘parallel structure’’ of subsections (a)(1) and (a)(2):
‘‘Subsection (a)(1) refers to presenting claims to the government for
‘payment or approval;’ subsection (a)(2) to making false statements
to get claims ‘paid or approved by the Government.’ ’’ Op. at 18.
But these two subsections are not ‘‘parallel’’ at all. Instead, they
are quite distinct, imposing liability on different kinds of fraud: the
first captures the person ‘‘who TTT presents TTT to an TTT employee
of the United States Government TTT a false TTT claim for payment
or approval’’; the second catches the one ‘‘who TTT makes TTT a
false TTT statement to get a false TTT claim paid or approved by the
Government.’’ 31 U.S.C. § 3729(a)(1), (2). The fact that both
subsections require some form of payment or approval does not
mean that they both require presentment to a government official.
 6

requirement is that the claim be ‘‘paid or approved by the
Government.’’ 31 U.S.C. § 3729(a)(2) (emphasis added).
And as the court recognizes, we should endeavor to construe
statutes so that no ‘‘word shall be superfluous.’’ Op. at 17
(quoting Alaska Dep’t of Envtl. Conservation v. EPA, 124 S.
Ct. 983, 1002 n.13 (2004)) (internal quotation marks omitted).
Hence, claims ‘‘paid by’’ the government suffice for subsection
(a)(2) liability, whether approved by it or not.
But, the court counters, the payment to the defendants was
not a payment ‘‘by the Government’’ since Amtrak — a
government grantee rather than the government itself —
wrote the check. The implications of the court’s argument
are breathtaking, because they do more than just impose a
requirement of re-presentment. If payment ‘‘by the govern-
ment’’ means that the government itself must write the check,
then fraud on grantees who pay their own contractors is not
covered by the False Claims Act regardless of whether claims
are re-presented to a government employee.
The statutory language requires no such result. In com-
mon parlance,5 the fact that expenses are ‘‘paid by’’ an entity
does not mean that the entity paid them directly. When a
student says that his college living expenses are ‘‘paid by’’ his
parents, he typically does not mean that his parents send
checks directly to his creditors. Rather, he means that his
parents are the ultimate source of the funds he uses to pay
those expenses. See United States Suppl. Br. at 12-13 (argu-
ing that ‘‘a claim is ‘paid by the Government’ either if the
government pays it directly or if the money is disbursed by a
third-party funding recipient who receives from the govern-
ment all or part of the funding for the payment’’); see also
United States ex rel. Marcus v. Hess, 317 U.S. 537, 544-45
(1943) (‘‘Government money is as truly expended whether by
checks drawn against the Treasury to the ultimate recipient
5See Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202,
207 (1997) (‘‘In the absence of an indication to the contrary, words
in a statute are assumed to bear their ordinary, contemporary,
common meaning.’’) (internal quotation marks omitted).
 7

or by grants in aidTTTT’’).6
This interpretation of ‘‘paid by the Government’’ — as
requiring that the government be either the direct or indirect
source of the funds — is confirmed by § 3729(c), which
defines the word ‘‘claim.’’ As discussed in Part III, § 3729(c)
provides that a request for money made to a grantee is a
‘‘claim’’ under the FCA ‘‘if the United States Government
provides any portion of the money or property TTT, or if the
Government will reimburse such TTT grantee, or other recipi-
ent for any portion of the money or property.’’ 31 U.S.C.
§ 3729(c). This interpretation is also supported by the legis-
lative history of the 1986 Amendments which, as discussed in
Part IV, stresses that a ‘‘false claim is actionable although the
claims or false statements were made to a party other than
the Government, if the payment thereon would ultimately
result in a loss to the United States.’’ S. Rep. No. 99-345, at
10 (emphasis added); see H.R. Rep. No. 99-660, at 21 (1986).
The court protests that this reading of ‘‘paid by the Gov-
ernment’’ has a ‘‘fatal flaw: it yields exactly the same mean-
ing that would result if Section 3729(a)(2) did not contain the
words ‘by the Government’ at all.’’ Op. at 16. Not so.
Those words make clear that, for liability to attach, the
government must have been the source of the funds either
directly or indirectly; that is, the fraud must ultimately result
in a loss to the government. Indeed, without those words,
6 In the related context of 18 U.S.C. § 641, which criminalizes
embezzlement of ‘‘money or thing[s] of value of the United States,’’
courts have held that ‘‘federal grant money does not lose its federal
character simply because it is administered by a nonfederal agen-
cy.’’ United States v. Largo, 775 F.2d 1099, 1102 n.3 (10th Cir.
1985); see, e.g., United States v. Long, 996 F.2d 731 (5th Cir. 1993)
(holding that a university’s funds, received from a state agency but
originating in the federal treasury, retained their federal character
for purposes of § 641); United States v. Foulks, 905 F.2d 928 (6th
Cir. 1990) (finding that grant funds in the possession of the Toledo
Salvation Army constituted funds of the United States); United
States v. Scott, 784 F.2d 787, 790-91 (7th Cir. 1986) (concluding that
theft of funds from a local government agency, which was primarily
funded by the federal government, appropriately triggered § 641).
 8

the subsection could be read to make liable any person who
‘‘knowingly makes TTT a false statement TTT to get a false or
fraudulent claim paid’’ by anyone.
Finally, if subsection (a)(2) does contain an implicit present-
ment requirement as my colleagues suggest, one is entitled to
ask whether their reading doesn’t have the ‘‘fatal flaw’’ they
ascribe to mine: it allows subsection (a)(1) ‘‘to swallow’’ (a)(2),
leaving the latter with no (or very little) independent mean-
ing. Op. at 21. My colleagues wait until virtually the last
page of their opinion to say what they think subsection (a)(2)
means: ‘‘[I]t seems clear,’’ they say, ‘‘that (a)(2) is TTT
designed to prevent those who make false records or state-
ments to get claims paid or approved from escaping liability
solely on the ground that they did not themselves present a
claim for payment or approval.’’ Id. (citing United States ex
rel. Harris v. Bernad, 275 F. Supp. 2d 1, 6 (D.D.C. 2003),
citing, in turn, JOHN T. BOESE, CIVIL FALSE CLAIMS & QUI TAM
ACTIONS § 2.01[B], at 2-22 (2d ed. Supp. 2004-1)). But since
this reading still implies that someone must have presented
the claim for liability to attach under subsection (a)(2), it does
not appear to differ from liability under (a)(1) — or subsec-
tion (a)(3) for that matter — which itself ensures that one
cannot avoid liability for false claims that he causes but does
not himself present. 31 U.S.C. § 3729(a)(1) (making liable
anyone who knowingly presents, ‘‘or causes to be presented’’
a false claim); see id. § 3729(a)(3) (same for anyone who
‘‘conspires to defraud the Government by getting’’ a false
claim paid).7 The court’s restrictive reading is neither clear
from the statutory text nor supported by anything more than
district court dicta, which in turn is supported by nothing
more than a statement in a practitioner’s guide, which itself
contains no explanation for the conclusion that it draws. See
Bernad, 275 F. Supp. 2d at 6 (citing BOESE § 2.01[B], at 2-22).
7 Indeed, the authority cited by the court acknowledges that
under this reading, ‘‘many violations of [(a)(2)] may also be consid-
ered violations of Section (a)(1) under the ‘causes to be presented’
language,’’ and the ‘‘distinctions between the two sections may be
even smaller than they first seem.’’ BOESE § 2.01[B], at 2-22.
 9

B
Without support in the statutory text, the court retreats
into legislative history — an ironic choice, given the court’s
protestations in the early pages of its opinion. But the
retreat is to no avail.
First, noting that the phrase ‘‘by the Government’’ was
added in 1986, the court concludes that it must have added
something new to the statute’s previous meaning. ‘‘The
intended effect of adding ‘by the Government,’ ’’ the court
says, ‘‘is fairly obvious: Congress was referring back to the
presentment requirement of Section 3729(a)(1).’’ Op. at 17.
But that divination of congressional intent is not obvious at
all. ‘‘Paid by the Government’’ is not a phrase that brings
‘‘presented to the Government’’ to mind, and there was no
reason for Congress to employ different language to express
the same concept. See Russello, 464 U.S. at 23. Nor does
the legislative history support the court’s view of congression-
al intent: not one word in the 1986 legislative history even
mentions the addition of ‘‘by the Government,’’ let alone
reflects such an intent.8
Indeed, as discussed in Part IV, the legislative history
suggests precisely the opposite. The same Congress that
added ‘‘by the Government’’ also expansively defined the term
‘‘claim’’ to make clear that the FCA covers fraud on grantees,
whether or not accompanied by presentment to the govern-
8 As the preceding discussion makes clear, my colleagues are
incorrect on two counts in saying that ‘‘[t]he dissent is unwilling to
give the addition of ‘by the Government’ to (a)(2) any weight
because it cannot find a statement in any committee report explain-
ing what Congress intended to accomplish by the amendment.’’ Op.
at 17-18 n.6. First, I do give ‘‘by the Government’’ weight: it
clarifies that the FCA only reaches false claims where the govern-
ment directly or indirectly provides the funds and suffers the loss.
Second, my argument does not rest on the absence of legislative
history, but rather on the best interpretation of the language of
§ 3729(a)(2) and (c). The absence of legislative history merely (and
completely) counters my colleagues’ own suggestion that the legisla-
tive history supports their interpretation.
 10

ment. It is difficult to believe that this Congress, after
proclaiming its purpose to reach fraud regardless of present-
ment, then subverted that purpose using words that do not
mention presentment at all. Accordingly, rather than add
something new to the FCA, the better explanation is that
those words were intended to clarify what the Supreme
Court had long held: that the FCA reaches only those false
claims that ultimately result in losses to the United States.
See United States v. Neifert-White Co., 390 U.S. 228, 232
(1968); Marcus, 317 U.S. at 544-45. Indeed, that reading is
in keeping with the overall purpose of the 1986 Amendments,
which was to ‘‘clarif[y] that the statute permits the Govern-
ment to sue under the False Claims Act for frauds perpetrat-
ed on Federal grantees, including States and other recipients
of federal funds.’’ S. Rep. No. 99-345, at 21 (emphasis
added).
Next, the court retreats even deeper into legislative histo-
ry, tracing the FCA’s language and structure all the way back
to 1863. As the court notes, from 1863 through 1982, the
liability provisions of the FCA were contained in a single,
‘‘interminable’’ sentence codified at 31 U.S.C. § 231. Op. at
18-19. That sentence (with clause numbers inserted for ease
of reference) made liable any person:
who [1] shall make or cause to be made, or present or
cause to be presented, for payment or approval, to or by
any person or officer in the civil, military, or naval
service of the United States, any claim upon or against
the Government of the United States, TTT knowing such
claim to be false, fictitious, or fraudulent, or who, [2] for
the purpose of obtaining or aiding to obtain the payment
or approval of such claim, makes, uses, or causes to be
made or used, any false bill, receipt, voucher, roll, ac-
count, claim, certificate, affidavit, or deposition, knowing
the same to contain any fraudulent or fictitious statement
or entry, or who [3] enters into any agreement, combina-
tion, or conspiracy to defraud the Government of the
United States, TTT by obtaining or aiding to obtain the
payment or allowance of any false or fraudulent claim, or
 11

who, [4] having charge, possession, custody, or control of
any money or other public property TTT, with intent to
defraud the United States TTT delivers TTT any amount
of such money or property less than that for which he
received a certificate or took a receipt, and every person
whoTTTT
31 U.S.C. § 231 (1976) (emphasis added). Contrary to the
court’s characterization, Op. at 19, I do not disagree that
Congress intended no substantive change when, in 1982, it
divided this sentence into the numbered subsections of 31
U.S.C. § 3729(a). See Pub. L. No. 97-258, § 1, 96 Stat. 978
(Sept. 13, 1982); H.R. Rep. No. 97-651, at 1 (1982). But I do
disagree with the conclusion the court draws from that fact,
since in my view the second clause of the pre-1982 FCA did
not contain a presentment requirement.
The first clause of the ‘‘interminable’’ sentence is the
precursor to § 3729(a)(1) and contains the now-familiar pres-
entment language. The conclusion that my colleagues draw
from this is that § 3729(a)(2) — whose precursor is the
second clause of the sentence, which unlike the first contains
no reference to presentment — can ‘‘only be read in conjunc-
tion with’’ the earlier presentment clause. Op. at 19. But if,
as my colleagues apparently intend, ‘‘in conjunction with’’
means ‘‘to incorporate,’’ this reading makes sense only if the
clauses of the pre-1982 version of the FCA were intended to
largely duplicate each other. And they were not.
The multiple clauses of the pre-1982 version were not
intended to repeatedly restate the same concept in different
words, but rather to encompass the various ways by which a
person could fraudulently obtain government funds.9 As the
9 The court is thus wrong to say that my interpretation ‘‘em-
brace[s] a reading of (a)(2) that would render the plain language of
(a)(1) largely meaningless.’’ Op. at 15; see id. at 20. Moreover, as
the government suggests, ‘‘there may be acts that fall within the
scope of subsection (a)(1), but do not fall within the scope of
subsection (a)(2)’’ in light of the fact that (a)(1) proscribes ‘‘false or
fraudulent claim[s],’’ 31 U.S.C. § 3729(a)(1), while (a)(2) deals with
 12

Supreme Court put it, ‘‘the Act was intended to reach all
types of fraud, without qualification, that might result in
financial loss to the Government.’’ Neifert-White, 390 U.S. at
961. This view is supported by the sentence’s multiple uses
of the disjunctive ‘‘or,’’ which indicate that subsection (a)(2)
should be read in ‘‘disjunction’’ rather than ‘‘conjunction’’ with
subsection (a)(1), and by the ‘‘rule against superfluities’’ cited
by the court, Op. at 17, which bars a reading that would have
one of several distinct clauses do all the necessary work. See
Hibbs v. Winn, 124 S. Ct. 2276, 2286 (2004); Duncan v.
Walker, 533 U.S. 167, 174 (2001).
To support its novel incorporation theory, the court con-
tends that the reference to ‘‘such claim’’ in subsection (a)(2)’s
precursor clause10 ‘‘was a shorthand reference to the claim
already identified in the current subsection (a)(1) — that is, a
claim that would be presented or caused to be presented to
the United States.’’ Op. at 19. But, the pre-1982 version of
the FCA does not use the court’s syntax: ‘‘a claim that would
be presented.’’ To the contrary, rather than use the word
‘‘presents’’ as a way to describe a claim, the pre-1982 statute
uses it to describe something done to a particular kind of
claim. And what kind of claim? The answer is: a false
‘‘claim upon or against the Government of the United States’’
in the precursor to subsection (a)(1),11 and a ‘‘false or fraudu-

certain ‘‘false record[s] or statement[s],’’ id. § 3729(a)(2). United
States Suppl. Br. at 6.
10 See 31 U.S.C. § 231, cl. 2 (1976) (making liable any person

‘‘who, for the purpose of obtaining TTT payment or approval of such
claim, makes TTT any false bill, receipt, voucher, roll, account,
claim, certificate, affidavit, or deposition, knowing the same to
contain any fraudulent or fictitious statement or entry’’) (emphasis
added).
11 See 31 U.S.C. § 231 (1976) (‘‘Any person TTT who [1] shall make
or cause to be made, or present or cause to be presented, for
payment or approval, to or by any person or officer in the civil,
military, or naval service of the United States, any claim upon or
against the Government of the United States, TTT knowing such
claim to be false, fictitious, or fraudulent, or who, [2] for the
 13

lent claim’’ in the current version.12 Those are the phrases
that are the logical referents for ‘‘such claim,’’ and neither
contains a reference to presentment.13
It is also important to remember that the history of the
False Claims Act did not end in 1982. Whatever meaning
‘‘such claim’’ had prior to 1982, and whatever Congress
intended by eliminating ‘‘such’’ in that year, the new defini-
tion of ‘‘claim’’ in the 1986 Amendments eliminates any reason
a reader of subsection (a)(2) might have to refer to subsection
(a)(1) to understand the meaning of the term. And that
definition contains no reference to presentment. See 31
U.S.C. § 3729(c). In short, whatever comfort the court de-
rives from the pre-1982 history of the FCA grows cold after
1986. See Lamie, 124 S. Ct. at 1030 (‘‘The starting point in
discerning congressional intent is the existing statutory text,
and not the predecessor statutes.’’) (internal citation omitted).
Finally, the court relies on ‘‘scholarly commentary’’ to
support the ‘‘proposition that subsection (a)(2) harkens back
to (a)(1), and that the latter requires presentment.’’ Op. at 20

purpose of obtaining or aiding to obtain the payment or approval of
such claim, makes, uses, or causes to be made or used, any false
billTTTT’’) (emphasis added).
12 See 31 U.S.C. § 3729(a)(1) (making liable any person who

‘‘knowingly presents, or causes to be presented, to an officer or
employee of the United States Government TTT a false or fraudu-
lent claim for payment or approval’’) (emphasis added).
13 Nor is the court correct in saying that ‘‘legislative history TTT
explains why the word ‘such’ disappeared from the statute,’’ Op. at
19 — at least not in any way helpful to the court’s interpretation.
The single sentence that the court relies on merely says: ‘‘ ‘The
word ‘‘such’’ is [no longer] used as a demonstrative adjective.’ ’’ Id.
(quoting H.R. Rep. No. 97-651, at 3). That is description, not
‘‘explanation.’’ Indeed, if anything, it is a description that supports
the reading argued for in the above paragraph. After 1982, subsec-
tion (a)(2) no longer modified ‘‘claim’’ with ‘‘such’’ as in its precursor
clause, and instead substituted the specific adjectival phrase that
Congress had intended: ‘‘a false or fraudulent’’ claim. 31 U.S.C.
§ 3729(a)(2).
 14

(citing BOESE § 2.01[B], at 2-21). But the ‘‘practitioner’s’’
guide, BOESE at i, that the court cites adds nothing to its
argument. While the guide does include the phrase, ‘‘a claim
[must] be presented to the United States,’’ in a list of the
elements of subsection (a)(2), see id. at 2-21, it does not cite a
single case or offer a single argument in support of that
proposition. The court’s opinion must stand or fall on its
own.

III
To this point, the analysis has principally proceeded by
examining § 3729(a) in isolation. But ‘‘words of a statute
must be read in their context and with a view to their place in
the overall statutory scheme,’’ FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (quotation marks
omitted), and here that context includes consideration of
§ 3729(c). In 1986, Congress amended the FCA by adding
that subsection, which contained a new and comprehensive
definition of the word ‘‘claim’’:
For purposes of this section, ‘‘claim’’ includes any request
or demand TTT for money or property which is made to a
contractor, grantee, or other recipient if the United
States Government provides any portion of the money or
property which is requested or demanded, or if the
Government will reimburse such contractor, grantee, or
other recipient for any portion of the money or property
which is requested or demanded.
31 U.S.C. § 3729(c) (italics and bolding added).
This definition plainly reaches not only those cases in which
the grantee pays out money and then gets reimbursed by the
government (the second ‘‘if’’ clause), but also those where
‘‘the United States Government provides any portion of the
money’’ requested (the first ‘‘if’’ clause). The definition does
require that a request or demand be made to the grantee, but
does not mention re-presentment to the government. In-
deed, such a re-presentment requirement is counter-intuitive
with respect to the cases covered by the first ‘‘if’’ clause.
Unlike the case in which a grantee advances its own funds
 15

and then seeks federal reimbursement, when the government
provides the grantee with federal funds and the grantee then
disburses them upon receipt of a contractor’s bill, it is unlike-
ly that the grantee would have any reason to re-present that
bill to the United States. Accordingly, the government con-
tends that a re-presentment requirement would ‘‘render[ ] the
first ‘if’ clause meaningless,’’ United States Br. at 13, contra-
vening the ‘‘rule against superfluities,’’ see Op. at 17.
In response, the court accuses the government of ‘‘rhetori-
cal sleight of hand’’ by equating ‘‘the present-tense ‘provides’
in the statute with the past-tense ‘has provided’ in the argu-
ment.’’ Id. at 7. I disagree. In common parlance, it does
not change the tense of ‘‘provides’’ to say that the govern-
ment ‘‘provides’’ Amtrak with the funds it uses to pay con-
tractors who later submit claims to Amtrak. Indeed, the
court might be charged with some tense-shifting of its own,
effectively transforming ‘‘provides’’ into the future tense by
reading the first ‘‘if’’ clause as attaching liability only: ‘‘if the
Government provides the funds to the grantee upon present-
ment of a claim to the Government.’’ Id. (emphasis in
original). Since in the real world these events do not tran-
spire simultaneously, the court’s contention that liability at-
taches only if the government provides the funds to the
grantee ‘‘upon presentment of a claim’’ must mean ‘‘after
presentment of a claim,’’ thus effectively transforming ‘‘pro-
vides’’ into the future-tense ‘‘will provide.’’ Such a transfor-
mation is particularly suspect in the context of § 3729(c),
since its second ‘‘if’’ clause shows that Congress knew how to
use that verb form when it wanted to. See 31 U.S.C.
§ 3729(c) (‘‘if the Government will reimburse such contractor
TTT’’) (emphasis added).
The primary problem with the court’s theory is not tense
transformation, however, but the insertion of extra words into
the statute. Subsection (c)’s first ‘‘if’’ clause does not state,
as the court does, that ‘‘False Claims Act liability will attach
if the Government provides the funds to the grantee upon
presentment of a claim to the Government.’’ Op. at 7 (em-
phasis added). Rather, it simply defines claim as a ‘‘request
or demand TTT to a contractor, grantee, or other recipient’’ —
 16

the phrase ‘‘presentment of a claim to the Government’’ is not
to be found. And as the old canon says, ‘‘we ordinarily resist
reading words or elements into a statute that do not appear
on its face.’’ Bates v. United States, 522 U.S. 23, 29 (1997);
see Lamie, 124 S. Ct. at 1032. Or, as the Supreme Court put
it more pithily in United States v. Naftalin: ‘‘The short
answer is that Congress did not write the statute that way.’’
441 U.S. 768, 773 (1979).

IV
I now turn to the legislative history of the 1986 Amend-
ments. Although the court fires off an array of canons to
preclude such inquiry, all refer to situations in which the
statutory text is plain and unambiguous.14 But, as is readily
apparent, neither § 3729(a)(2) nor § 3729(c) mentions the
word ‘‘presentment’’ in any of its variations. And whatever
one may think of the arguments that can be made from the
actual text, no one can say the False Claims Act ‘‘unambigu-
ously’’ imposes a presentment requirement for liability under
subsection (a)(2). Counsel for Bombardier rightly conceded
as much at oral argument. Oral Arg. Tr. at 29-30. Accord-
ingly, reference to the legislative history is appropriate. See
Blum v. Stenson, 465 U.S. 886, 896 (1984).
Once the legislative history is consulted, any residual un-
certainty about whether to read a presentment requirement
into the statute disappears. As this court recognized in
Yesudian, the purpose of the new definition of ‘‘claim’’ added
in 1986 was to ‘‘ ‘clarif[y] that the statute permits the Govern-
ment to sue under the False Claims Act for frauds perpetrat-
ed on Federal grantees, including States and other recipients
14 See Op. at 8-9 (citing Lamie, 124 S. Ct. at 1030 (‘‘[W]hen the
statute’s language is plain, the sole function of the courts TTT is to
enforce it according to its terms.’’) (internal quotation marks omit-
ted); Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (stating
that courts should ‘‘not resort to legislative history to cloud a
statutory text that is clear’’); Davis v. Michigan Dep’t of Treasury,
489 U.S. 803, 808 n.3 (1989) (‘‘Legislative history is irrelevant to the
interpretation of an unambiguous statute.’’)).
 17

of federal funds.’ ’’ 153 F.3d at 737 (quoting S. Rep. No. 99-
345, at 21). The Senate Judiciary Committee stressed that it
did not matter whether the claim was made to a government
employee or to a grantee. ‘‘[A] false claim is actionable,’’ the
Committee said, ‘‘although the claims or false statements
were made to a party other than the Government, if the
payment thereon would ultimately result in a loss to the
United States.’’ S. Rep. No. 99-345, at 10 (emphasis added).
And the House Judiciary Committee agreed: ‘‘[C]laims or
false statements made to a party other than the Government
are covered by this term if payment thereon would ultimately
result in a loss to the United States.’’ H.R. Rep. No. 99-660,
at 21 (emphasis added).
Moreover, the ‘‘Senate Judiciary Committee indicated that
the new subsection was inserted in response to earlier court
holdings that ‘a fraud against the grantee does not constitute
a fraud against the Government of the United States’ where
‘once the United States has made the grant to the State TTT
or other institution, it substantially relinquishes all control
over the disposition of the money.’ ’’ Yesudian, 153 F.3d at
737 (quoting S. Rep. No. 99-345, at 21). The example cited by
the Committee was Salzman v. Salant & Salant, Inc., 41 F.
Supp. 196 (S.D.N.Y. 1938), in which a district court dismissed
a complaint that alleged the defendant had submitted false
claims for payment to the Red Cross, because the Red
Cross — although a recipient of federal funds — was neither
the government nor a department thereof. S. Rep. No. 99-
345, at 21. At the same time, the Committee approvingly
cited cases akin to this one, where courts had held that ‘‘a
false claim to the recipient of a grant from the United States
TTT is a false claim to the United States.’’ Id. at 10 (citing
United States ex rel. Davis v. Long’s Drugs, 411 F. Supp.
1144 (S.D. Cal. 1976)). Thus, to read the False Claims Act as
requiring presentment to the government ‘‘would leave intact
those court opinions Congress seemingly intended to over-
rule,’’ while overturning those that Congress cited with ap-
proval. Yesudian, 153 F.3d at 738.
The court does not, and cannot, dispute that requiring
presentment leaves intact ‘‘some’’ of the opinions that Con-
 18

gress intended to overrule.15 Yet, it contents itself with the
fact that requiring presentment does not leave intact one of
the cases that Congress cited with disapproval, United States
v. Azzarelli Construction Co., 647 F.2d 757 (7th Cir. 1981).
Op. at 10. But while it is true that imposing a presentment
requirement does not interfere with the overruling of Azza-
relli, that is only because Azzarelli was a case that Congress
wanted to overrule for a different reason: it had held that the
FCA did not apply to grantees ‘‘where the Federal contribu-
tion is a fixed sum.’’ S. Rep. No. 99-345, at 15. The fact that
the court’s interpretation can be squared with Congress’
intentions regarding that single case does not square its
interpretation with the legislative history of the 1986 Amend-
ments.
Taking another tack, the court dismisses the import of the
1986 legislative history altogether, noting that the Senate
Report was based on a version of the bill that did not yet
include the provision that added the words ‘‘by the Govern-
ment’’ to subsection (a)(2). See Op. at 20. As discussed in
Part II, however, those words do not impose a requirement of
presentment to the government. Nor is there any legislative
history that suggests they do. Indeed, the history is entirely
silent as to why the words were added, and it is simply not
plausible that Congress, which had expressed its intent to
clarify that the FCA covers false claims to grantees, reversed
itself without so much as a whisper. As the Supreme Court
said in rejecting an analogous contention that Congress had
repealed municipal liability in the 1986 Amendments, ‘‘it is
simply not plausible that Congress intended’’ to make such a
change ‘‘sub silentio by the very Act it passed to strengthen
the Government’s hand in fighting false claims.’’ Cook Coun-
ty, Illinois v. United States ex rel. Chandler, 538 U.S. 119,
133-34 (2003).
Nor can my colleagues’ dismissal of the clear legislative
history find support in the arms of the inestimable Judge
Friendly. Op. at 10 (citing HENRY J. FRIENDLY, BENCHMARKS
15See Op. at 10 (conceding that ‘‘Totten and the United States
may be on firmer ground with respect to some of the TTT cases with
which the Committee expressed displeasure’’).
 19

216 (1967)). In fact, the canon of construction propounded by
the good judge supports the opposing view:
[I]f an intent clearly expressed in committee reports is
within the permissible limits of the language and no
construction manifestly more reasonable suggests itself,
a court does pretty well to read the statute to mean what
the few legislators having the greatest concern with it
said it meant to them.
FRIENDLY, at 216. In this case, the intent expressed in the
committee reports is well within the permissible limits of the
language, and there is no construction that is more reason-
able. Accordingly, in Judge Friendly’s view, this court would
do ‘‘pretty well to read the statute to mean’’ what Congress
said it meant. Id.

V
Finally, the court falls back on policy considerations to
support its presentment requirement. Op. at 11-13. The
court’s arguments are flawed on their own terms. More
important, the policies on which the court relies are not those
of the Congress of the United States.
The court’s policy analysis begins with the contention that
an ‘‘interpretation that would advance the statute’s general
purposes to a greater extent’’ should not ‘‘always prevail over
one that would both advance the same ends — though to a
slightly lesser extent — and have fewer drawbacks.’’ Op. at
11. This is fine as canons go, but only if Congress has
indicated that it would be satisfied if its ends were advanced
to ‘‘a slightly lesser extent’’ than the face of the statute
suggests. And only if the court’s idea of a ‘‘drawback’’ is the
same as the legislature’s.16 But those caveats are not satis-
16 See Lamie, 124 S. Ct. at 132 (‘‘Our unwillingness to soften the
import of Congress’ chosen words even if we believe the words lead
to a harsh outcome is longstanding.’’); FRIENDLY, at 203 (‘‘[A] court
will ‘do well to stick close to the text and not import argumentative
qualifications from broad, unexpressed claims of policy.’ ’’ (quoting
Utah Junk Co. v. Porter, 328 U.S. 39, 44 (1946))).
 20

fied here, where the statutory language includes no present-
ment requirement and the legislative history makes clear that
Congress did not want one.
Next, the court identifies several ‘‘complications’’ that could
flow from permitting recovery where there is fraud on a
grantee, but no presentment to the government. Op. at 12.
The first such complication is that ‘‘extending False Claims
Act liability here seems to result in quadruple liability for
false claimants: a grantee could presumably bring suit and
obtain a recovery for itself, in addition to the treble damages
the Government and the relator divvy up under the Act.’’ Id.
But the premise of this argument is dubious. The FCA
permits recovery only on behalf of the government, and only
for ‘‘damages which the Government sustains.’’ 31 U.S.C.
§ 3729(a).17 For the grantee also to bring suit successfully, it
would have to rely on some other source of law. And it is
pure speculation that such an unnamed (perhaps state com-
mon law) cause of action would permit a grantee duplicative
recovery, rather than require allocation among the injured
parties according to their injuries. Moreover, even if state
law did permit such recovery, a mechanical presentment
requirement would not obviate the court’s concern.
The other main complication identified by the court is that,
without a presentment requirement, ‘‘the potential reach of
the Act’’ is ‘‘almost boundless,’’ potentially stretching to ‘‘any
false claim made to any college or university, so long as the
institution has received some federal grants.’’ Op. at 13.18
17 In addition to trebling the amount of the government’s dam-

ages, the Act provides for the recovery of an additional amount, not
less than $5,500 and not more than $11,000. See 31 U.S.C.
§ 3729(a); see also Federal Civil Penalties Inflation Adjustment Act
of 1990, Pub. L. No. 101-410, § 5, 104 Stat. 891 (Oct. 5, 1990); 28
C.F.R. § 85.3(a)(9).
18 The third asserted complication, that it would be ‘‘unclear how
to apply the ‘knowingly presents’ element,’’ if there were no ‘‘re-
quirement of presentment to the Government,’’ Op. at 12-13, may be
relevant with respect to subsection (a)(1), but has no relevance to
subsection (a)(2). As previously noted, the latter does not contain
 21

This argument also fails. As noted, the FCA limits damages
to those ‘‘which the Government sustains.’’ 31 U.S.C.
§ 3729(a). Although determining whether the government
has been damaged by fraud on a grantee may be difficult in
some cases, in others it will not. Here, for example, the
plaintiff alleges that the money was ‘‘paid out of [Amtrak’s]
capital budget which consists entirely of money[ ] received
from the United States Government, that was specifically
designated for capital expenditures.’’ Dillon Decl. ¶ 5; see id.
¶ 7. As the government describes the current state of the
record, ‘‘it is the United States that provided much, if not all,
of the funding for the projects with respect to which the
alleged fraud here was committed, and it is the United States
Government that will bear much, if not all, of any ensuing
losses.’’ United States Suppl. Br. at 11. Moreover, if tracea-
bility is a problem, it is a problem borne by the plaintiff, who
must prove that the claim was ‘‘paid TTT by the Government’’
in order to establish liability under § 3729(a)(2), and who
must demonstrate the extent of the United States’ losses in
order to recover treble damages under § 3729(a).
In any event, there is no evidence that Congress shares the
policy concerns identified by the court. To the contrary, far
from worrying that the False Claims Act might extend too far
in covering fraud on grantees, Congress insisted that ‘‘a false
claim to the recipient of a grant from the United States or to
a State under a program financed in part by the United
States, is a false claim to the United States.’’ S. Rep. No. 99-
345, at 10. And it sought to ensure that ‘‘a false claim is
actionable although the claims or false statements were made
to a party other than the Government, if the payment thereon
would ultimately result in a loss to the United States.’’ Id.
The Supreme Court has long recognized the breadth of
Congress’ concern in enacting the FCA, noting that ‘‘Con-
gress wrote expansively, meaning ‘to reach all types of fraud,
without qualification, that might result in financial loss to the
Government.’ ’’ Cook County, 538 U.S. at 129 (quoting Nei-

the ‘‘knowingly presents’’ language that causes the complication.
Compare 31 U.S.C. § 3729(a)(1), with id. § 3729(a)(2).
 22

fert-White, 390 U.S. at 232). As a consequence, ‘‘[i]n the
various contexts in which questions of the proper construction
of the Act have been presented, the Court has consistently
refused to accept a rigid, restrictive reading, even at the time
when the statute imposed criminal sanctions as well as civil.’’
Neifert-White, 390 U.S. at 232. And, in language that is a
particularly apt rejoinder to the contention that a re-
presentation requirement is needed to rein in the Act’s poten-
tial reach, the Court has emphasized that federal funds
granted to third parties ‘‘are as much in need of protection
from fraudulent claims as any other federal money, and the
statute does not make the extent of their safeguard dependent
upon the bookkeeping devices used for their distribution.’’
Marcus, 317 U.S. at 544 (emphasis added).
Indeed, if there are policy concerns that should be taken
into account in choosing between possible interpretations of
the FCA, they are the ones outlined in the preceding two
paragraphs, because they are the ones that Congress itself
expressed. And measured by those concerns, it is the inter-
pretation that the court adopts today that should give us
pause. The consequence of today’s ruling is a dramatic
cutback in the federal government’s ability to protect itself
against false claims on federal grant money. Where a grant-
ee receives federal money in advance and then pays its
contractors directly — without the federal government micro-
managing the program by insisting on receiving and approv-
ing every invoice before payment — the FCA will no longer
provide an avenue to recover for false claims. And as this
case makes clear, the court’s ruling applies even to an entity
like Amtrak: a ‘‘publicly-funded operation,’’ H.R. Rep. No.
105-251, at 21 (1997), that receives almost $1 billion dollars in
federal grant money annually, see 49 U.S.C. § 24104(a),19 and
19 See also S. Rep. No. 105-85, at 2 (1997) (‘‘Since 1971, TTT
Amtrak has received more than $20 billion in Federal funding.’’);
Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 385 (1995)
(noting that Congress subsidizes ‘‘Amtrak’s perennial losses’’).
 23

that paid the defendants in this case out of federal funds that
were specifically provided for the contract at issue, see Am.
Compl. ¶ 43; Dillon Decl. ¶ 5. The removal of the protection
of the False Claims Act in these circumstances is far more
than a mere ‘‘complication.’’

VI
The United States charges that the interpretation the court
adopts today will ‘‘significantly restrict[ ] the reach of the
False Claims Act in a manner than Congress did not intend,
withdrawing False Claims Act protection with respect to a
broad swath of false claims inflicting injury on the federal
fisc.’’ United States Br. at 9. The United States is right. If
that interpretation were required by the statutory language,
we would of course be required to adopt it nonetheless. But
the court’s interpretation is neither compelled by nor consis-
tent with the language of 31 U.S.C. § 3729(a)(2) and (c). I
therefore respectfully dissent.