Riley v. St Luke's Epis Hosp

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20948

JOYCE RILEY,

Plaintiff-Appellant,

versus

ST. LUKE’S EPISCOPAL HOSPITAL,
BRANISLAV RADOVANCEVIC,
O. HOWARD FRAZIER, M.D.,
SURGICAL ASSOCIATES OF TEXAS, P.A.,
THE UNIVERSITY OF TEXAS HOUSTON
HEALTH SCIENCE CENTER,
BAYLOR COLLEGE OF MEDICINE,
TEXAS HEART INSTITUTE, and
EDWARD K. MASSIN, M.D.,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas

May 25, 2001

Before JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO
M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.*

*
Chief Judge King did not participate in this decision.
CARL E. STEWART, Circuit Judge:

We took this case en banc to reconsider the issue of whether the qui tam provisions of the

False Claims Act (“FCA”), which permits private citizens, or relators, to pursue actions for fraudulent

claims in the name of the federal government, violate the constitutional separation of powers doctrine

under the Take Care and Appointments Clauses of Article II. Because we find no such

unconstitutional intrusion, we reverse and remand to the district court.

FACTUAL AND PROCEDURAL HISTORY

Joyce Riley (“Riley”), a former nurse at St. Luke’s Episcopal Hospital (“St. Luke’s”), sued

eight defendants under the qui tam provisions of the FCA, claiming that they defrauded and conspired

to defraud the United States Treasury in violation of the statute. Riley proceeded with the lawsuit

although the government exercised its right not to intervene under 31 U.S.C. § 3730(b)(4)(B)

(2000).1 The district court subsequently dismissed Riley’s lawsuit on standing grounds.2 On appeal,

however, this Court held that although Riley had standing to sue under Article III,3 qui tam actions

1
In exchange, qui tam plaintiffs, such as Riley, may recover up to 30 percent of the proceeds of
an action, in addition to reasonable attorneys’ fees and costs, if the action is successful. 31 U.S.C.
§ 3730(d)(2). Relators, however, may recover a maximum of 25 percent of the proceeds in lawsuits
initiated by a relator in which the government chooses to intervene. 31 U.S.C. § 3730(d)(1).
2
United States ex rel. Riley v. St. Luke’s Episcopal Hosp., et al., 982 F. Supp. 1261, 1268-69
(S.D. Tex. 1997).
3
The United States Supreme Court subsequently held that relators have standing to bring qui tam
actions under the FCA. Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S.
765, 848, 120 S. Ct. 1858, 146 L. Ed. 2d 836 (2000). We, therefore, pretermit discussion of this
issue.

2
pursued under the FCA in which the government does not intervene violate the doctrine of separation

of powers and the Take Care Clause.

The United States intervened to defend the constitutionality of the FCA. We subsequently

decided to rehear this case en banc, but delayed it pending the Supreme Court’s decision in Stevens.4

DISCUSSION

I. The Role of History

Qui tam lawsuits have been used throughout American and English history as a means to

discover and to prosecute fraud against the national treasuries. Indeed, the Founding Fathers and the

First Congress enacted a number of statutes authorizing qui tam actions. Stevens, 529 U.S. at 848

nn.5-7. After undergoing a decline in popularity and need, qui tam, under the guise of the original

FCA, enjoyed a renaissance during the Civil War era. This renaissance was precipitated by a desire

to combat widespread corruption and fraud amongst defense contractors who supplied the Union

Army. Stevens, 529 U.S. at 843.

In 1986, qui tam underwent a similar surge of popularity after Congress’s decision to amend

the FCA in order to promote such lawsuits in the face of an ever-growing federal deficit and fears that

defense contractors were once again defrauding the government. The most important amendment

that Congress made to the 1986 legislation was to increase the reward offered to qui tam plaintiffs.

J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C.

L. REV. 539, 541-42 (2000). The increase in the proceeds available to relators has resulted in an

4
For further examination of the factual and procedural background of this case, see United States
ex rel. Riley v. St. Luke’s Episcopal Hosp., et al., 196 F.3d 514 (5th Cir. 1999), vacated by 196 F.3d
at 516, and United States ex rel. Riley v. St. Luke’s Episcopal Hosp., et al., 982 F. Supp. 1261.

3
augmented number of lawsuits filed by qui tam relators. Id. at 542. As of September 1999, more

than 2900 qui tam lawsuits had been filed. Id. Moreover, more than a billion dollars have been

recovered under the FCA qui tam provisions since 1987. Anna Mae Walsh Burke, Qui Tam:

Blowing the Whistle for Uncle Sam, 21 NOVA L. REV. 869, 871 (1997).

The practical effects of the 1986 amendments to the FCA notwithstanding, the Supreme Court

in Stevens gave due credence to the important historical role that qui tam lawsuits have played on

both sides of the Atlantic as a means to root out corruption against national governments. Justice

Scalia, writing for the 7-2 majority in Stevens, noted that the history of qui tam was “well nigh

conclusive” with respect to resolving the question of whether qui tam relators filing suit under the

FCA have Article III standing. Stevens, 529 U.S. at 848.

Although the Court in Stevens expressed no opinion regarding the role of history in evaluating

the Article II Take Care and Appointments Clauses questions, we are persuaded that it is logically

inescapable that the same history that was conclusive on the Article III question in Stevens with

respect to qui tam lawsuits initiated under the FCA is similarly conclusive with respect to the Article

II question concerning this statute. Indeed, the dissent in Stevens noted that history alone resolves

the question of whether the qui tam provisions in the FCA violate Article II, stating “[t]hat [historical]

evidence, together with the evidence that private prosecutions were commonplace in the 19th century

. . . is also sufficient to resolve the Article II question that the Court has introduced sua sponte, ante,

at 1865, n.8.” Stevens, 529 U.S. at 863. (Stevens, J., dissenting). Therefore, we find that history,

although not the sole definitive argument supporting the view that the FCA’s qui tam provisions do

not violate Article II, is certainly a “touchstone illuminating” their constitutionality. Riley, 196 F.3d

4
at 543-44 (Stewart, J., dissenting). Moreover, this historical perspective provides us with a helpful

bridge into the workings of the statute itself.

II. The Executive’s Control Over Qui Tam Actions Initiated Under the FCA

That a private citizen may pursue qui tam litigation under the FCA, whether the government

chooses to intervene or does not choose, does not interfere with the President’s constitutionally

assigned functions under Article II’s Take Care Clause. Although the Clause states that the

Executive must “take Care that the Laws be faithfully executed,” it does not require Congress to

prescribe litigation by the Executive as the exclusive means of enforcing federal law. U.S. CONST.

art. II, § 3. Thus, even though Congress has historically allowed alternative mechanisms of fraud

enforcement against the federal government, this state of affairs does not therefore mean that the

Executive’s functions to control such litigation are necessarily impinged.

As this Court has previously noted, the Executive retains significant control over litigation

pursued under the FCA by a qui tam relator. First, there is little doubt that the Executive retains such

control when it intervenes in an action initiated by a relator.5 Second, even in cases where the

government does not intervene, there are a number of control mechanisms present in the qui tam

provisions of the FCA so that the Executive nonetheless retains a significant amount of control over

the litigation. The record before us is devoid of any showing that the government’s ability to exercise

its authority has been thwarted in cases where it was not an intervenor.

5
The panel majority’s original holding was limited solely to cases in which the government does
not intervene, and it did not address this subset of the qui tam universe. See Riley, 196 F.3d at 529
n.43.

5
 Our precedent, moreover, accords with the position that this en banc court now takes. In

Searcy v. Philips Elec. N. Am. Corp., et al., 117 F.3d 154 (5th Cir. 1997), we held that the FCA

clearly permits the government to veto settlements by a qui tam plaintiff even when it remains passive

in the litigation. We cited several ways in which the government may assume control over qui tam

litigation in which it does not intervene under the FCA. See id., 117 F.3d at 160. We noted that not

only may the government take over a case within 60 days of notification, but it may also intervene

at a date beyond the 60-day period upon a showing of good cause. Id., 117 F.3d at 159 (citing 31

U.S.C. § 3730(d)(2)(A) and 31 U.S.C. §§ 3730(b)(3) & (c)(3)). This Court also stated that the

government retains the unilateral power to dismiss an action “notwithstanding the objections of the

person.” Id., 117 F.3d at 160 (citing 31 U.S.C. § 3730(c)(2)(A)).

In United States ex rel. Russell v. Epic Healthcare Mgmt. Group, we held that parties, in a

qui tam suit filed under the FCA in which the United States does not intervene, have 60 days to file

a notice of appeal under Rule 4(a)(1) of the Federal Rules of Civil Procedure.6 193 F.3d 304, 306

(5th Cir. 1999). We similarly stated in Russell that although the government does not intervene, its

involvement in the litigation nonetheless continues. Id. We noted, for example, that, in addition to

the control mechanisms already stated in Searcy, the government “may request that it be served with

copies of pleadings and be sent deposition transcripts . . . [and it] may pursue alternative remedies,

such as administrative proceedings.” Id. at 307; see also 31 U.S.C. § 3730(c)(3) and (5). We also

6
We nonetheless affirmed the district court’s dismissal of the qui tam suit in Russell because the
relator failed to plead fraud with particularity in accordance with Rule 9(b) of the Federal Rules of
Civil Procedure. Russell, 193 F.3d at 306.

6
noted that despite the government’s non-intervention, it “receives the larger share of any recovery,”

amounting to up to 70% of the proceeds of a lawsuit.7 Id.; see also 31 U.S.C. § 3730 (d)(1) and (2).

Furthermore, the FCA itself describes several additional ways in which the United States

retains control over a lawsuit filed by a qui tam plaintiff. In the area of settlement, for example, the

government may settle a case over a relator’s objections if the relator receives notice and hearing of

the settlement. 31 U.S.C. § 3730(c)(2)(B). Additionally, in the area of discovery, if the government

shows that discovery initiated by a qui tam plaintiff “would interfere with the Government’s

investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may

stay the discovery for sixty days or more,” whether or not the government intervenes. 31 U.S.C. §

3730(c)(4).

For this reason, it is therefore apparent that the Supreme Court’s decision in Morrison v.

Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988), the primary case upon which the

Riley panel majority relied to analyze the constitutionality of the qui tam provisions of the FCA under

Article II,8 is inapplicable to the present discussion. At issue in Morrison were the independent

7
In United States ex rel. Foulds v. Tex. Tech Univ., we also held that the Eleventh Amendment
barred a qui tam suit by a private plaintiff against a public university in which the government did not
intervene, and we stated that there is a continuum of control that the government has in qui tam
lawsuits. 171 F.3d 279, 289-90 (5th Cir. 1999), cert. denied, 530 U.S. 1202, 120 S. Ct. 2194, 147
L. Ed. 2d 231 (2000). On the one hand, the government has complete control when it decides to
intervene. Id. On the other hand, although we indicated that a relator has significant control over
qui tam litigation when the government chooses not to intervene, we stated that the government still
“retains some control over the qui tam suit.” Id. at 289-90, 293. Thus, our holding in Foulds does
not contradict our en banc position now.
8
The Riley majority gleaned a four-part test from Morrison to determine whether the Executive
ret ains sufficient control and discretion over lawsuits filed by qui tam plaintiffs under the FCA
consistent with the Take Care Clause of Article II. This test included the following inquiries: 1)
whether the Executive may remove the relator for good cause; 2) whether the Executive may request
the appointment of the relator; 3) whether the Executive defines the jurisdiction of the relator; and

7
counsel provisions of the Ethics in Government Act (“EGA”), which permitted the delegation of

“criminal prosecution functions to a judicially appointed prosecutor who could be removed only by

the Attorney General, and only under a highly constrained ‘good cause’ requirement.” Returning

Separation-of-Powers Analysis to Its Normative Roots: The Constitutionality of Qui Tam Actions

and Other Private Suits to Enforce Civil Fines, 30 Envtl. L. Rep. (Envtl. L. Inst.) 11,081, at 11, 095

(Dec. 2000) [hereinafter Returning Separation-of-Powers]. The Morrison Court upheld the

independent counsel provisions, finding that they do not violate separation of powers principles by

impermissibly infringing upon the Executive’s constitutional duties under either the Take Care Clause

or the Appointments Clause of Article II. Morrison, 487 U.S. at 696.

Morrison, although it examined similar constitutional questions with regard to the Executive’s

duties under Article II, is not relevant to the present discussion of qui tam relators, which invokes

civil suits filed by private plaintiffs, for two principal reasons. First, the EGA assigns the independent

counsel to act as the United States itself, in contrast to the FCA’s qui tam provisions, which only

authorize the relator to bring a lawsuit in the name of the United States. 28 U.S.C. § 594(a) (2000),

expired by 28 U.S.C. § 599 (authorizing the independent counsel to have “full power and independent

authority to exercise all investigative and prosecutorial functions and powers of the Department of

Justice, the Attorney General, and any other officer or employee of the Department of Justice”); see

also 28 U.S.C. § 594(i), expired by 28 U.S.C. § 599 (noting that the independent counsel and persons

appointed by that independent counsel “are separate from and independent of the Department of

4) whether the relator must abide by the policies of the Department of Justice. Riley, 196 F.3d at
527-28. The panel majority, however, emphasized the second factor of this Morrison control test by
focusing on two elements: 1) the Executive does not have prosecutorial discretion to prosecute a
claim brought by a qui tam plaintiff; and 2) the Executive does not have sufficient control over the
litigation if it does not intervene in the litigation once it is commenced. Id. at 528.

8
Justice”); 28 U.S.C. § 597(a), expired by 28 U.S.C. § 599 (stating that when an independent counsel

has undertaken its duty to investigate and to prosecute “the Department of Justice, the Attorney

General, and all other officers and employees of the Depart ment of Justice shall suspend all

investigations and proceedings regarding such matter, except to the extent required by section

594(d)(1) [28 USCS [sic] §§ 594(d)(1)], and except insofar as such independent counsel agrees in

writing that such investigation or proceedings may be continued by the Department of Justice”).

Second, in contrast to independent counsel who undertake functions relevant to a criminal

prosecution, relators are simply civil litigants. No function cuts more to the heart of the Executive’s

constitutional duty to take care that the laws are faithfully executed than criminal prosecution. Since

the advent of public prosecutions in the United States, “no private citizen . . . can subject another

private citizen to the unique and virtually unfettered powers of a criminal prosecutor . . . . The

burdens of criminal investigation cannot be imposed on any target unless the investigator has been

duly clothed with the power of the state through a process that is legally and politically accountable.”

Returning Separation-of-Powers, at 11, 097. Thus, because the independent counsel provisions at

issue in Morrison and the qui tam provisions central to Riley involve two different types of lawsuits,

the Executive must wield two different types of control in order to ensure that its constitutional duties

under Article II are not impinged. Should the occasion arise, these two different types of control

necessarily require the application of two different sorts of tests. Hence, the Morrison control test

that the panel majority used to evaluate the constitutionality of the qui tam provisions in the FCA is

9
simply not dispositive of the instant case, as it involves an entirely different lawsuit and requires

entirely different control mechanisms.9

There is also a credible argument that because the Court upheld the EGA’s independent

counsel provisions under Article II, it would similarly uphold the FCA’s qui tam provisions under the

same Article. Relators sue in civil capacities, involving lesser uses of traditional Executive power,

in contrast to independent counsels who arguably wield greater “Executive” power because they act

in criminal contexts.10

9
The Ninth Circuit in United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 752 (9th Cir. 1993),
also used Morrison to examine the question of whether the FCA’s qui tam provisions violate
separation of powers. In contrast to the Morrison control test used by the panel majority in Riley,
however, the Ninth Circuit relied on the independent counsel provisions discussed in Morrison simply
as an analogy. For example, it analyzed the qui tam provisions in the FCA only to the extent that they
“‘as a whole’ [compared] to the independent counsel provisions ‘as a whole’” and whether the FCA
“taken as a whole” violates the principle of separation of powers by unduly interfering with the
President’s constitutional role. Kelly, 9 F.3d at 752.
10
Other circuits have either cited the control mechanisms in the FCA that we now discuss or have
already taken the position we now declare en banc. See, e.g., United States v. Health Possibilities,
P.S.C., 207 F.3d 335, 340-41 (6th Cir. 2000) (holding that the absolute consent of the Attorney
General is required before a relator may settle an action under the qui tam provisions of the FCA even
when it does not intervene in the action); United States ex rel. Zissler v. Regents of Univ. of Minn.,
154 F.3d 870, 872 (8th Cir. 1998) (agreeing with other circuit courts that the United States is “the real
party in interest ” because of its “extensive power” to control the qui tam litigation as well as the
“extensive benefit flowing to [it] from any recovery”); United States ex rel. Hall v. Tribal Dev. Corp.,
49 F.3d 1208, 1213 (7th Cir. 1995) (reiterating that “it is the government, not the individual relator,
who is the real plaintiff in the suit”); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co.,
41 F.3d 1032, 1041 (6th Cir. 1994) (stating that the FCA’s qui tam provisions “do not contradict the
constitutional principle of separation of powers. Rather, they have been crafted with particular care
to maintain the primacy of the Executive Branch in prosecuting false-claims action, even when the
relator has initiated the process”); Kelly, 9 F.3d at 745 (holding in part that the qui tam provisions
of the FCA do not violate the constitutional principle of separation of powers); United States ex rel.
Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1155 (2d Cir. 1993) (stating that “the
FCA qui tam provisions do not usurp the executive branch’s litigating function because the statute
gives the executive branch substantial control over the litigation”); United States ex rel. Milam v.
Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 48-49 (4th Cir. 1992) (emphasizing the
“extensive power the government has to control [qui tam] litigation” and underscoring that the United

10
 Moreover, the powers of a qui tam relator to interfere in the Executive’s overarching power

to prosecute and to control litigation are seen to be slim indeed when the qui tam provisions of the

FCA are examined in the broad scheme of the American judicial system. The prosecution of criminal

cases has historically lain close to the core of the Article II executive function. The Executive Branch

has extraordinarily wide discretion in deciding whether to prosecute. Indeed, that discretion is

checked only by other constitutional provisions such as the prohibition against racial discrimination

and a narrow doctrine of selective prosecution. Nonetheless, when the Executive has made the

decision to initiate the criminal case, its large discretion is narrowed considerably and the power to

dispose of the case is shared in part with the Third Branch.

For example, Rule 48(a) of the Federal Rules of Criminal Procedure clearly states that

although the Executive has the power to indict an individual, it may not dismiss such an indictment

without “leave of court.” FED.R.CRIM.P. 48(a). Similarly, Rule 11 of the Federal Rules of Criminal

Procedure requires court approval of plea bargains, a judicial check that functions in a manner similar

to that of Rule 48. FED.R.CRIM.P. 11(a)(2).11

Thus, although our judicial system allows for these seemingly greater intrusions by the

Judiciary into the Executive’s paramount power to prosecute in the criminal context, Rule 48, Rule

11, and the criminal justice system have not suffered from the constitutional and systemic pitfalls that

have been ascribed to the FCA’s qui tam provisions. See, e.g., United States v. Cowan, 524 F.2d

States is the “real plaintiff” in a qui tam action filed under the FCA, that it “is entitled to the lion’s
share of any amount recovered,” and that it may intervene upon a showing of good cause).
11
Rule 11, however, is perhaps less intrusive vis-a-vis the Executive Power than judicial
intervention at the indictment phase, as the guilty plea implicates the adjudication of guilt- a distinctly
judicial function.

11
504, 513 (5th Cir. 1975) (stating that “the phrase ‘by leave of court’ in Rule 48(a) was intended to

modify and condition the absolute power of the Executive, consistently with the Framer’s concept

of Separation of Powers, by erecting a check on the abuse of Executive prerogatives”). Any intrusion

by the qui tam relator in the Executive’s Article II power is comparatively modest, especially given

the control mechanisms inherent in the FCA to mitigate such an intrusion and the civil context in

which qui tam suits are pursued. Hence, the qui tam portions of the FCA do not violate the

constitutional doctrine of separation of powers by impinging upon the Executive’s constitutional duty

to take care that the laws are faithfully executed under Article II of the Constitution.12

III. The FCA’s Qui Tam Provisions do not Violate the Appointments Clause

The Appointments Clause states in part that “the President shall nominate, and by and with

the advice and consent of the Senate shall appoint . . . all other officers of the United States, whose

appointments are not herein otherwise provided for and which shall be established by law. But the

Congress may, by law, vest the appointment of such inferior officers as they may think proper . . . in

the heads of departments.” U.S. CONST. art. II, § 2, cl. 2. The district court and the panel majority

in Riley declined to address this question, but it is presented to us en banc because it was raised in

the district court as an additional basis for finding constitutional deficiency in the qui tam provisions

12
There is also an argument that Article II’s Take Care Clause and Article III’s standing
requirement, resolved by the Court in Stevens, are two different sides of the same Separation of
Powers coin. In both instances, the Judiciary may not enter into the traditional sphere of Executive
power, and citizens cannot enlist the judiciary in a quest to police the government absent a personal
interest distinct from that of all citizens. Although we find this argument persuasive, we limit our
discussion to the issues examined herein.

12
of the FCA. We are persuaded that this argument holds even less vitality than the arguments made

about the Take Care Clause, given that qui tam relators are not officers of the United States.

Supreme Court precedent has established that the constitutional definition of an “officer”

encompasses, at a minimum, a continuing and formalized relationship of employment with the United

States Government. See Auffmordt v. Hedden, 137 U.S. 310, 327, 11 S. Ct. 103, 34 L. Ed. 674

(1890) (finding that a merchant appraiser is not an “officer” for purposes of the Appointments Clause

where his position is without tenure, duration, continuing emolument, or continuous duties); United

States v. Germaine, 99 U.S. 508, 511-12, 25 L. Ed. 482 (1878) (holding that a surgeon appointed

by Commissioner of Pensions was not an “officer” where his duties were not continuing and

permanent). There is no such relationship with regard to qui tam relators, and they therefore are not

subject to either the benefits or the requirements associated with offices of the United States. For

instance, qui tam plaintiffs do not draw a government salary and are not required to establish their

fitness for public employment.13 Therefore, we are persuaded that the FCA’s qui tam provisions do

not violate the Appointments Clause.

CONCLUSION

13
We note also that our holding does not differ from that of at least one member of the Supreme
Court and other circuit courts. The dissent in Stevens plainly stated that the FCA’s qui tam
provisions do not violate the Appointments Clause. 529 U.S. at 863 (Stevens, J., dissenting). Circuit
courts according with our view en banc regarding the Appointments Clause include the Sixth, Ninth,
and Fourth Circuits. See, e.g., Taxpayers Against Fraud, 41 F.3d at 1041; Kelly, 9 F.3d at 758;
Milam, 961 F.2d at 49 (implicitly supporting this argument and stating that “Congress has let loose
a posse of ad hoc deputies to uncover and prosecute frauds against the government”).

13
 For the foregoing reasons, we hold that the qui tam provisions of the False Claims Act do not

violate the principle of separation of powers by impermissibly infringing upon the constitutional duty

of the Executive to take care that the laws are faithfully executed under the Take Care Clause of

Article II. We similarly hold that the FCA’s qui tam provisions do not violate the Appointments

Clause. We, therefore, REVERSE and REMAND to the district court for further proceedings.

REVERSED AND REMANDED.

14
JERRY E. SMITH, Circuit Judge, with whom DeMOSS, Circuit Judge, joins dissenting:

Allowing relators to pursue False Claims Act(“FCA”) qui tam actions in which the

government has declined to intervene violates the Take Care Clause14 and the Appointments Clause15

of Article II.16 Although Judge Stewart has presented a well-written,

comprehensive opinion on behalf of the en banc majority, that

majority fails to recognize either the encroachment on executive

power that results from turning over litigation of the government’s

business to self-appointed relators or the consequent violations of

separation of powers. Accordingly, I respectfully dissent.

I. Violations of Separation of Powers Generally.

The Constitution divides power among the three branches. “The

ultimate purpose of this separation of powers is to protect the

liberty and security of the governed.” Metro. Washington Airports

Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S.

252, 272 (1991). As former Attorney General Levi explained:

14
U.S. CONST. art. II, § 3.
15
U.S. CONST. art. II, § 2.
16
Although I refer repeatedly to the constitutionality vel non of “the
FCA,” this case deals only with the small subset of FCA actions in
which the United States elects not to intervene, and the relator
consequently goes forward with the action on his own. There is no
question that FCA claims litigated by the government are
constitutional.
 The essence of the separation of powers concept
formulated by the Founders from the political experience
and philosophy of the revolutionary era is that each
branch, in different ways, within the sphere of its de-
fined powers and subject to the distinct institutional
responsibilities of the others is essential to the lib-
erty and security of the people. Each branch, in its own
way, is the people's agent, its fiduciary for certain
purposes. . . .

Fiduciaries do not meet their obligations by arro-
gating to themselves the distinct duties of their mas-
ter's other agents.

Levi, Some Aspects of Separation of Powers, 76 COLUM. L. REV. 371

385-386 (1976). It is the duty of the courts to police the boun-

daries of the separation of powers.17

The branch that must be most carefully monitored against at-

tempted encroachments on the other branches is the legislative, as

James Madison explained:

17
“Violations of the separation-of-powers principle have been
uncommon because each branch has traditionally respected the
prerogatives of the other two. Nevertheless, the Court has been
sensitive to its responsibility to enforce the principle when
necessary.” Metro. Washington Airports Auth., 501 U.S. at 272.

Time and again we have reaffirmed the importance in our
constitutional scheme of the separation of governmental powers
into the three coordinate branches. As we stated in Buckley
v. Valeo, 424 U.S. 1, 122 (1976), the system of separated
powers and checks and balances established in the Constitution
was regarded by the Framers as “a self-executing safeguard
against the encroachment or aggrandizement of one branch at
the expense of the other.” We have not hesitated to
invalidate provisions of law which violate this principle.

Morrison v. Olson, 487 U.S. 654, 693 (1988) (selective internal
citations omitted).

16
 It will not be denied, that power is of an encroaching
nature, and that it ought to be effectually restrained
from passing the limits assigned to it. . . .

The founders of our republics . . . seem never for
a moment to have turned their eyes from the danger to
liberty from the overgrown and all-grasping prerogative
of an hereditary magistrate . . . They seem never to
have recollected the danger from legislative usurpations;
which by assembling all power in the same hands, must
lead to the same tyranny as is threatened by executive
usurpations. . . . [I]t is against the enterprising
ambition of this department, that the people ought to
indulge all their jealousy and exhaust all their
precautions.

The legislative department derives a superiority in
our governments from other circumstances. Its
constitutional powers being at once more extensive and
less susceptible of precise limits, it can with the
greater facility, mask under complicated and indirect
measures, the encroachments which it makes on the
co-ordinate departments. It is not unfrequently a
question of real-nicety in legislative bodies, whether
the operation of a particular measure, will, or will not
extend beyond the legislative sphere.

THE FEDERALIST No. 48, at 332-34 (J. Cooke ed. 1961).

To protect against the danger of legislative encroachment, the

Constitution forbids Congress to “invest itself or its Members with

either executive power or judicial power.” J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 406 (1928). This prohibition

applies not only to Congress but also to its agents, as explained

in Bowsher v. Synar, 478 U.S. 714, 726 (1986):

To permit the execution of the laws to be vested in an
officer answerable only to Congress would, in practical
terms, reserve in Congress control over the execution of
the laws. . . . The structure of the Constitution does

17
 not permit Congress to execute the laws; it follows that
Congress cannot grant to an officer under its control
what it does not possess.

Thus, the Constitution is pellucid on separation of powers.18

It does not permit Congress to vest executive power in one of Con-

gress’s agents. The question presented in this case is whether the

Constitution also forbids Congress from vesting the executive power

in a self-appointed agent who answers to no one. The answer to

this question must be no, because the Constitution is violated both

when one branch of government aggrandizes itself at the expense of

another and when one branch “impermissibly undermine[s]”19 the con-

stitutionally granted powers and functions of another, even if

there is no aggrandizement.20

18
See Humphrey’s Executor v. United States, 295 U.S. 602, 629-30 (1935) (“The fundamental
necessity of maintaining each of the three general departments of government entirely free from the
control or coercive influence, direct or indirect, of either of the others, has often been stressed and
is hardly open to serious question. . . . James Wilson, one of the framers of the Constitution and a
former justice of this court, said that the independence of each department required that its
proceedings ‘should be free from the remotest influence, direct or indirect, of either of the other two
powers.’”) (quoting 1 ANDREWS, THE WORKS OF JAMES WILSON 367 (1896))).
19
Morrison, 487 U.S. at 658.
20
See Clinton v. Jones, 520 U.S. 681, 701 (1997) (stating that “the separation of powers doctrine
requires that a branch not impair another in the performance of its constitutional duties”) (quoting
Loving v. United States, 517 U.S. 748, 757 (1996)); Morrison, 487 U.S. at 694-95 (1988);
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 856-57 (1986); Nixon v. Adm’r of
Gen. Servs., 433 U.S. 425, 443 (1977); see also Neil Kinkopf, Of Devolution, Privatization and
Globalization: Separation of Powers Limits on Congressional Authority To Assign Federal Power
to Non-federal Actors, 50 RUTGERS L. REV. 331, 338-39 (1998).

18
 II. Take Care Clause and Separation of Powers.

A. Violations of Take Care Clause.

The Take Care Clause states that the Executive “shall take

Care that the Laws be faithfully executed.” U.S. CONST. art. II,

§ 3. It gives the Executive the power to enforce the laws, see

Springer v. Philippine Islands, 277 U.S. 189, 202 (1928); such pow-

er includes the authority “to investigate and litigate offenses

against the United States.” United States ex rel. Stillwell v.

Hughes Helicopters, Inc., 714 F. Supp. 1084, 1088 (C.D. Cal. 1989)

(citing Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam)).

The Take Care Clause was designed as a crucial bulwark to the

separation of powers and is far from a dead letter or obsolete rel-

ic. As recently as 1997, the Supreme Court cited the Take Care

Clause in striking (on other grounds) provisions of the Brady Act,

explaining:

The Constitution does not leave to speculation who is to
administer the laws enacted by Congress; the President,
it says, “shall take Care that the Laws be faithfully ex-
ecuted,” Art. II, § 3, personally and through officers
whom he appoints. . . . The Brady Act effectively
transfers this responsibility to thousands of [state law
enforcement officers] in the 50 States, who are left to
implement the program without meaningful Presidential
control (if indeed meaningful Presidential control is
possible without the power to appoint and remove). The
insistence of the Framers upon unity in the Federal
ExecutiveSSto insure both vigor and accountabilitySSis
well-known. . . . That unity would be shattered, and the
power of the President would be subject to reduction, if
Congress could act as effectively without the President

19
 as with him, by simply requiring state officers to exe-
cute its laws.

Printz v. United States, 521 U.S. 898 (1997) (citations omitted).21

Like the Brady Act, the FCA violates the separation of powers

embodied in the Take Care Clause in a number of ways. First, it

diminishes the political accountability of the Executive for en-

forcement of the laws by allowing any private citizen to sue on be-

half of the government, even though the Attorney GeneralSSperhaps

because he believes that institution of the action is inimical to

the government’s interestsSShas decided not to pursue the claim.22

This removes from the Executive Branch the prosecutorial discretion

that is at the heart of the President's power to execute the laws,23

21
The Printz Court observed that early statutes requiring state officials to enforce federal laws
imposed only adjudicative, not executive, duties on state officials. See Printz, 521 U.S. at 927
(recognizing “early [federal] statutes imposing obligations on state courts” but noting an “utter lack
of statutes imposing obligations on the States’ executives”). This observation counters the
government’s argument that the history of state officials’ executing federal law demonstrates that the
Constitution does not require that the President retain meaningful control over federal law
enforcement. The early statutes to which the government points as indicating that state officials have
historically enforced federal law may have permitted adjudicative tasks, but they could not properly
have allowed state officials to sue on behalf of the federal government, for “[a] lawsuit is the ultimate
remedy for a breach of the law, and it is to the President . . . that the Constitution entrusts the
responsibility to ‘Take Care that the Laws be faithfully executed.’” Buckley v. Valeo, 424 U.S. at
138 (1976).
22
See 31 U.S.C. § 3730(c)(3) (“If the Government elects not to proceed wi th the action, the
person who initiates the action shall have the right to conduct the action.”).
23
See United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive
authority and absolute discretion to decide whether to prosecute a case”); Heckler v. Chaney, 470
U.S. 821, 832 (1985) (refusing to force the EPA to take action) (“[T]he decision of a prosecutor in
the Executive Branch not to indict . . . has long been regarded as the special province of the Ex-
ecutive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that

20
and leaves no one in government who is accountable for the prose-

cution of government claims. Thus, the protections built into the

Constitution against selective or harsh enforcement of laws are

quashed in FCA suits conducted by relators.

Second, the FCA violates the separation of powers principles

embodied in the Take Care Clause by both aggrandizing Congressional

power and impermissibly undermining Executive power.24 Through this

statute, Congress has invoked both its own powerSSto pass lawsSSand

that of the ExecutiveSSto assign their enforcement. It does not

save the Act that Congress did not give itself the enforcement

power it took from the Executive, because the Act “impermissibly

undermines” Executive functions by wresting control, from the Pres-

ident, of the initiation and prosecution of government lawsuits.

Defendants need show no more than this to establish a Take

Care Clause separation-of-powers violation. Nevertheless, the FCA

goes further, aggrandizing both the Legislative and Judicial

branches: first, by allowing Congress to enforce laws without re-

liance on the Executive; second, by decreasing Executive power,

which makes Congress relatively stronger; and third, by shifting

some of the discretion to bring suit and to control the action from

the Executive to the judiciary, as I discuss infra.

the Laws be faithfully executed.’”).
24
See notes 6-7, supra, and accompanying text.

21
 Third, the FCA does not provide the Executive with enough con-

trol over the relator to be able to “take care that the laws be

faithfully executed.”25 The decision to initiate the lawsuit is

made by the relator, without input from the Executive.26 The Ex-

ecutive has absolutely no control of the relator and therefore no

way to ensure that he “take[s] care that the laws be faithfully

executed.” The relator does not have to follow Department of Jus-

tice (“DOJ”) policies, has no agency relationship with the govern-

ment,27 has no fiduciary or other duties to it, and has no

obligation whatsoever to pursue the best interests of the United

States.28 Instead, the relator can negotiate a settlement in his

25
U.S. CONST. art. II § 3.
26
It is true that the government may intervene within sixty days and seek
to dismiss the lawsuit. 31 U.S.C. § 3730(c)(2)(A). It cannot, however, dismiss
the suit as of right. The relator has the right to be heard at a hearing before
the suit is dismissed. Id. Unless the statutory hearing is merely pro forma,
it follows that in some cases the Executive will be unsuccessful in overcoming
the relator’s objections and will be unable to dismiss the suit.

Further, in casesSSsuch as RileySSin which the government does not in-
tervene, the suit should end. The Constitution grants complete control of the
execution of the laws to the Executive. This control includes total discretion
over the allocation of prosecutorial resources. The dynamic created by the
FCASSwherein Congress has mandated that the Executive must investigate, in-
tervene, and motion to dismiss a suit that it does not want to see pur-
suedSSunconstitutionally interferes with the Executive’s allocation of its prose-
cutorial resources. Furthermore, the amount of resources that the FCA requires
the DOJ to allocate to review FCA suits is not insignificant. See note 24,
infra.
27
The government's brief confirms that there is no agency relationship.

28
This court has previously noted that “the government does not expect
that the relator will act first and foremost with the government’s
interests in mind.” United States ex rel. Foulds v. Tex. Tech
Univ., 171 F.3d 279, 290 (5th Cir. 1999). Qui tam relators “are
motivated primarily by prospects of monetary reward rather than the
public good.” Hughes Aircraft, 520 U.S. 939, 949 (1997). Of

22
own interest rather than in the public interest. While the

government must be consulted in all such settlements, there is no

guarantee that it will take an active interest in these cases or

that the settlements reached by a relator and approved by the DOJ

will be of the same sort that the government would reach on its own

for the benefit of the public.29

Nor may the Executive freely dismiss a qui tam action. If the

relator objects to the decision to dismiss, the government must no-

tify him of the filing of the motion to dismiss, and the court must

course, this concern about encroachment on the Executive’s
prosecutorial discretion is present only in qui tam actions in
which the government declines to intervene. When the Attorney
General does intervene, the Executive is essentially initiating the
action at the urging of an informer and thereby retains “a degree
of control over the power to initiate” the action.
29
Public choice theory tells us that the reason for this is that, although
the government, on its own, might not be inclined to seek the settlement nego-
tiated by the private interest group, the fact that the public is for the most
part unaware of the settlementSSwhile the interest group lobbies the government
to join the settlementSSgives the government a one-sided incentive to go along
with whatever agreement the private parties have made. Thus is accountability
lessened and public law twisted to private purposes, as Justice Scalia described
in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
210 (2000) (“FOE”):

A Clean Water Act plaintiff pursuing civil penalties acts as a
self-appointed mini-EPA. Where, as is often the case, the plaintiff
is a national association, it has significant discretion in choosing
enforcement targets. Once the association is aware of a reported
violation, it need not look long for an injured member, at least un-
der the theory of injury the Court applies today. And once the tar-
get is chosen, the suit goes forward without meaningful public con-
trol. The availability of civil penalties vastly disproportionate
to the individual injury gives citizen plaintiffs massive bargaining
powerSSwhich is often used to achieve settlements requiring the de-
fendant to support environmental projects of the plaintiffs’ choos-
ing. Thus is a public fine diverted to a private interest.

23
grant him a hearing before deciding whether to permit dismissal.30

Moreover, the Executive may not freely settle a qui tam action. If

the relator objects to the government’s attempt to settle, the gov-

ernment must obtain court approval, and the court may approve only

after it holds a hearing and finds that the settlement is “fair,

adequate, and reasonable under all the circumstances.”31

The Executive may not freely restrict the relator’s

participation in the qui tam action but first must first show the

court that the relator’s unrestricted participation “would

interfere with or unduly delay the Government’s prosecution of the

case, or would be repetitious, irrelevant, or for purposes of ha-

rassment.” 31 U.S.C. § 3730(c)(2)(C). Nor can the Executive con-

trol the breadth of the matter litigated by the relator. Thus, a

relator may make sweeping allegations that, while true, he is un-

30
31 U.S.C. § 3730(c)(2)(A). The requirement that the government
obtain court permission to dismiss a qui tam suit raises serious
questions regarding the balance of power between the Executive and
Judicial Branches. See In re Int'l Bus. Machs. Corp., 687 F.2d
591, 602 (2d Cir. 1982) (“The district court's involvement in the
executive branch’s decision to abandon litigation might impinge
upon the doctrine of separation of powers.”). Such questions are
not implicated in this case, however, because they involve
potential interference with Executive prerogatives not by a
relator, as here, but by the judiciary.
31
Id. § 3730(c)(2)(B). Gravitt v. Gen. Elec. Co., 680 F. Supp. 1162 (S.D.
Ohio 1988), illustrates how the qui tam provisions encroach on the Executive’s
control of settlements. There, the court refused to accept the government’s set-
tlement, lecturing the DOJ on the inadequacy of its investigation into the matter
alleged in the relator’s complaint. See id. at 1164. It turns out, however,
that the fraud complained of resulted in a net undercharge to the government, and
a few years later, the DOJ succeeded in settling for the sum the Gravitt court
initially had rejected. See Memorandum re: Constitutionality of the Qui Tam
Provisions of the False Claims Act, 13 U.S. Op. Off. Legal Counsel 207, 219.

24
able effectively to litigate, but which nonetheless bind the gov-

ernment, via res judicata, and prevent it from suing over those

concerns at a later date when more information is available. Fi-

nally, the Executive has no power to remove the relator from the

litigation under any circumstances.32

B. Inapplicable Precedent.

In only one case has the Supreme Court allowed an encroachment

on the Executive anywhere near that countenanced by the FCA. In

Morrison v. Olson, 487 U.S. 654 (1988), the Court upheld the con-

stitutionality of the independent counsel provisions of the Ethics

in Government Act (“EGA”). The Court recognized that the special

structural problems dealt with by the EGA required some

encroachment on the Executive’s Take Care Clause powers.

32
See 31 U.S.C. § 3730(c)(1) (providing that if the government
intervenes, the relator “shall have the right to continue as a
party to the action, subject to the limitations set forth in
paragraph (2),” none of which permits removal); id. § 3730(c)(3)
(providing that if government intervenes after initially deciding
not to do so, it may not limit relator’s status and rights). One
commentator has pointed out that a plain reading of § 3730(c)(3)
appears to bar the government from dismissing a case if it
intervenes after initially declining to do so, for dismissal would
certainly “limit[ ] the status and rights of the person initiating
the action.” See James T. Blanch, Note, The Constitutionality of
the False Claims Act's Qui Tam Provisions, 16 HARV. J.L. & PUB.
POLICY 701, 766 (1993). But see United States ex rel. Kelly v.
Boeing Co., 9 F.3d 743, 752 & n.8 (9th Cir. 1993) (reasoning that
to preserve the FCA, the Act should be interpreted to give
government similar degree of control over litigation as if it had
intervened at litigation’s inception).

25
 The independent counsel device was intended to address a nar-

row structural problemSSthe conflict of interest present when the

Attorney General is called on to investigate criminal wrongdoing by

his close colleagues in the Executive Branch. In accepting the

independent counsel as an appropriate means of dealing with this

intra-branch conflict, the Morrison Court announced that when con-

gressional action potentially undermines the Executive’s litigative

function, the test of constitutionality is whether the Executive

Branch retains sufficient “control” over the litigation “to ensure

that the President is able to perform his constitutionally assigned

duties.” Id. at 696. While acknowledging the independent coun-

sel’s special needs for independence, the Morrison court stressed

four features of the EGA that preserved sufficient Executive con-

trol to satisfy Article II:

Most importantly, [1] the Attorney General retains
the power to remove the counsel for "good cause," a power
that we have already concluded provides the Executive
with substantial ability to ensure that the laws are
"faithfully executed" by an independent counsel. [2] No
independent counsel may be appointed without a specific
request by the Attorney General, and the Attorney Gener-
al's decision not to request appointment if he finds "no
reasonable grounds to believe that further investigation
is warranted" is committed to his unreviewable
discretion. The Act thus gives the Executive a degree of
control over the power to initiate an investigation by
the independent counsel. [3] In addition, the
jurisdiction of the independent counsel is defined with
reference to the facts submitted by the Attorney General,
and [4] once a counsel is appointed, the Act requires
that the counsel abide by Justice Department policy
unless it is not "possible" to do so. Notwithstanding
the fact that the counsel is to some degree "independent"

26
 and free from executive supervision to a greater extent
than other federal prosecutors, in our view these
features of the Act give the Executive Branch sufficient
control over the independent counsel to ensure that the
President is able to perform his constitutionally
assigned duties.

Morrison, 487 U.S. at 696 (emphasis added).

As the panel opinion pointed out, not a single one of the

features of the EGA that preserved Executive control is present in

the FCA’s qui tam provisions. The Attorney General has no power to

remove a relator, no matter how irresponsible the suit becomes. If

he makes the proper showing to the court, the Attorney General may

limit the relator’s participation, see 31 U.S.C. § 3730(c)(2)(C),

and may even dismiss the action once the court has afforded the

relator with a hearing on the motion to dismiss, see id.

§ 3730(c)(2)(A), but may not simply remove the relator, see id.

§ 3730(c)(1),(3).

Perhaps more importantly, the second crucial feature present

in the independent counsel statute is missing: The Attorney Gener-

al loses all control over the decision whether to initiate the

suit. Even if the Attorney General determines that there are “no

reasonable grounds” for the fraud action, the relator may override

that judgment and initiate a lawsuit.33 The action goes forward in

33
The Ninth Circuit, while rejecting an Article II challenge to the FCA, admitted that, under the
EGA, the “Attorney General[’s] . . . unreviewable discretion to request appointment of a counsel, and
therefore to initiate litigation by a counsel,” is an “unqualified control built into the independent
counsel provisions,” and that “[c]learly, the government has greater authority to prevent the initiation

27
the government’s name, under total control of the self-interested

and publicly unaccountable relator, even if the Attorney General

has concluded that proceeding with a lawsuit is not merited or is

otherwise not in the United States’s interests.

The third and fourth features also are conspicuously absent.

The Attorney General has no control over the breadth of a relator’s

suit. Indeed, as I have already noted, a relator may make sweeping

allegations that he is unable effectively to litigate, and thereby

bind the government, via res judicata, to his failed suit. Final-

ly, the relator, unlike the independent counsel, need not adhere to

the rules and policies of the DOJ.

The majority makes two unconvincing arguments as to why it is

improper to apply the analysis in Morrison to this case. It

reasons:

First, the EGA assigns the independent counsel to act as
the United States itself, in contrast to the FCA’s qui
tam provisions, which only authorize the relator to bring
a lawsuit in the name of the United States. . . .
Second, in contrast to independent counsel who undertake
functions relevant to a criminal prosecution, relators
are simply civil litigants.

(Citing 28 U.S.C. § 594(a) (2000), expired by 28 U.S.C. § 599).

of prosecution by an independent counsel than by a qui tam relator.” United States ex re. Kelly v.
Boeing Co., 9 F.3d 743, 754 (9th Cir. 1993). It is difficult to overstate the importance of this control,
which is missing from the FCA, when one recognizes that once suit has been filed, the controls the
Executive Branch may exerciseSSmost of which require court approval of some sortSSare simply not
sufficient to counterbalance this major encroachment on Executive power.

28
 As to its first point, the majority does not explain the dif-

ference between litigating “as the United States” as opposed to

litigating “in the name of the United States.” Nor does the ma-

jority explain how such a distinction can do away with the Court’s

exhortation in Morrison that, when congressional action threatens

to encroach on Executive activities, the test of constitutionality

is whether the Executive Branch retains sufficient “control” over

the litigation “to ensure that the President is able to perform his

constitutionally assigned duties.” Id. at 696. Certainly, dif-

ferent amounts of control may be appropriate depending on the role

of the one litigating the government’s case, but an act of Congress

that uses the magic words that a person is litigating “in the name

of the United States,” rather than “as the United States,” surely

cannot strip courts of their responsibility to evaluate whether the

legislation allows for the President to fulfill his duty to take

care that the laws be faithfully executed.

The majority’s second stated reason why Morrison is irrelevant

to this case is a mere distinction between the facts of the two

cases. The majority points out that independent counsel are grant-

ed criminal prosecutorial duties, whereas FCA relators “are simply

civil litigants.” The majority notes that criminal prosecution is

at the “heart of the Executive’s constitutional duty” and then,

without more, asserts that “the Morrison control test that the pan-

el majority used to evaluate the constitutionality of the qui tam

29
provisions of the FCA is simply not dispositive of the instant

case, . . .” Although different controls may be needed for the

Executive to take care of the execution of the laws in criminal as

opposed to civil cases, nothing in the Supreme Court’s jurispru-

dence suggests that the Take Care Clause does not apply to civil

cases.34

Further, as the majority notes, other circuits have found the

control provisions in Morrison useful “as a whole” in evaluating

the constitutionality of the FCA “as a whole.”35 The majority un-

fairly attacks the panel opinion as rigidly applying the four-

factor test from Morrison in determining whether the FCA withstands

constitutional scrutiny under Article II. In actuality, after ob-

34
Although the majority makes much of the factual distinction that the FCA only allows civil suits,
whereas the Supreme Court upheld the constitutionality of criminal prosecutions brought by
independent counsel, the reasoning of the majority in this case makes this a difference only in degree,
not in kind. The majority articulates no rational limiting principle that allows constitutionality here
but that makes it unconstitutional for Congress to pass a statute permitting relators to, say, prosecute
government claims for criminal forfeiture, or for criminal fines, so long as part of the recovery was
assigned to the relator. Indeed, the majority noted with approval the Fourth Circuit’s statement that,
in passing the FCA, “Congress has let loose a posse of ad hoc deputies to uncover and prosecute
frauds against the government” (quoting United States ex rel. Milam v. Univ. of Tex. M.D. Anderson
Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992)). Possees may have been appropriate in the Wild West,
where they were deputized by the an executive officerSSthe SheriffSSbut Congress has no business
forming them now.
35
The majority states (citing United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 745 (9th Cir.
1993) the “[t]aken as a whole, . . . the FCA affords the Executive Branch a degree of control over
qui tam relators that is not distinguishable from the degree of control the Morrison Court found the
Executive Branch exercises over independent counsels.” See also United States ex rel. Kreindler &
Kreindler v. United Tech. Corp., 985 F.2d 1148 (2d Cir. 1993) (rejecting Article II challenge to
FCA); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1041 (6th Cir.
1994) (same).

30
serving that the FCA contains not a single one of the control

mechanisms that the Morrison court found in the EGA, the panel went

on to conclude that “[e]ven taking the qui tam provisions ‘as a

whole’ and not focusing on any of the particular differences be-

tween the provisions and the independent counsel statute, qui tam

effects a greater degree of encroachment on Executive prerogatives

than does the [EGA] upheld in Morrison.” Riley, 196 F.3d at 529.

As I have explained above, the most crucial ways in which the

FCA fails to provide the executive with sufficient control are that

the FCA does not allow the Executive to initiate litigation, ter-

minate litigation (without court approval), control the scope and

pace of the litigation, or control the procedures used by the law-

yer prosecuting the case. The FCA’s most severe violations of the

separation of powers principles embedded in the Take Care Clause

include the fact that unaccountable, self-interested relators are

put in charge of vindicating government rights, and that the trans-

parency and controls of the constitutional system are not in place

to influence the outcome of such litigation.

Finally, the elements of the FCA that disable effective Execu-

tive control were not drafted in response to the special intra-

branch problems that the EGA sought to correct in Morrison.36

36
See Riley, 196 F.3d at 529:

The independent counsel device was intended to address a narrow structural problemSSthe
perceived conflict of interest when the Attorney General is called on to investigate criminal

31
Rather, the FCA was broadly drafted for the much-less-compelling

purpose of being one of a number of tools available to combat fraud

by government contractors. Although the majority implies

otherwise, suits brought by relators in which the government does

not intervene are not even particularly useful in collecting monies

for the government.37

wrongdoing by his close colleagues within the Executive Branch. The Morrison Court
accepted the independent counsel as an appropriate means of dealing with this intra-branch
conflict. The device arguably does not unduly encroach on executive power, because its very
purpose is to investigate impermissible executive activity. Moreover, it is narrowly tailored
to achieve its purpose: It encroaches on the Executive only to the limited extent necessary
to protect against a conflict of interest, while retaining executive control consistent with that
objective. . . .

Given the independent counsel statute’s special objective and narrow tailoring, the
Morrison Court likely was especially forgiving of Executive encroachment.
37
Because this case deals only with those qui tam actions in which the government does not
intervene, the majority’s statistics indicating the effectiveness of all FCA qui tam actions are
inapposite. The majority cites data showing that FCA qui tam actions have resulted in recoveries of
more than a billion dollars as of September 1999, implicitly suggesting that such information should
influence our opinion of the constitutionality of the qui tam action at issue in this case. While the
alleged effectiveness of the FCA's qui tam provisions should not affect our decision as to their
constitutionality, the only statistics relevant to this case would describe the effectiveness of a subset
of qui tam actionsSSthose in which the government does not intervene.

DOJ data indicates that such actions, relative to qui tam actions in which the government does
intervene, have not resulted in a significant boon to the federal treasury. For example, in the first nine
months of 2000, the government recovered $1.2 billion in cases in which it had intervened but only
$913,957 in those in which it had not (less than eight hundredths of one percent (.0077%) of the total
qui tam recoveries in 2000). See Fried Frank Harris Shriver & Johnson, FCA
Statistics, at http://www.ffhsj.com/quitam/fcastats.htm (last
modified Dec. 19, 2000) (posting, without modification, data
received from the DOJ through requests under the Freedom of
Information Act). Even taking the figures for total qui tam
recoveries since 1988, $3.962 billion has been recovered in qui tam
actions in which the government joined, and only $211 million (5%
of the total recovered) has been recovered in cases in which the
government declined to join. If one excludes the anomalous year of

32
 III. Violations of the Appointments Clause.

The Appointments Clause is a valid and independent ground for

affirming the district court’s dismissal. That clause mandates

that the Executive

shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Min-
isters and Consuls, Judges of the Supreme Court, and all
other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be
established by Law; but the Congress may by Law vest the
Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or
in Heads of Departments.

U.S. CONST. art. II, § 2, cl. 2.

As I have noted, relators are not appointed by any branch of

government, but rather appoint themselves. The majority gives

1999, suits in which the government does not join amount to only
1.47% of the total qui tam recoveries.

The above statistics might lead one to believe that the
government joins most qui tam lawsuits. This is not the case,
however. Of the 2520 qui tam cases that have been concluded to
date, the government has joined only 554 cases (22%) but has
refused to join 1,966 cases (78%). Of the 554 cases the government
has joined, it has recovered money by settlement or judgment 425
times (77% of its cases) and has failed to achieve a recovery only
11 times (2% of its cases), 112 cases remain active, 3 are
inactive, and 3 are uncertain. Of the 1,966 cases that the
government has refused to join, only 100 have resulted in
recoveries (5%), while 1,451 have been lost (74%); 258 cases remain
active, 34 are inactive, and 123 are uncertain.

These figures show that the cases in which the government
declines to intervene are generally the meritless cases. Hence,
the majority’s implicit suggestion that a determination of
unconstitutionality in this limited case would result in the
disablement of an effective law enforcement tool is utterly without
support.

33
short shrift to the Appointments Clause issue, concluding that it

is not violated, because “qui tam relators are not officers of the

United States.” The majority ignores, however, the question that

logically follows its conclusion that relators are not officers:

whether non-officers may prosecute claims owned by the United

States.

Supreme Court precedent makes it plain that the answer to this

question is no. The Court has twice held, first in Buckley, 424

U.S. 1, and then in Morrison, 487 U.S. at 671 n.12, that persons

litigating on behalf of the United States are officers of the

United States. In Buckley, the Court held that the Federal Elec-

tion Campaign Act of 1971, which authorized the President pro

tempore of the Senate and the Speaker of the House to select four

of the six voting members of the Federal Election Commission, vio-

lated the Appointments Clause. Buckley, 424 U.S. at 113, 140. The

Court adopted the general rule that “any appointee exercising sig-

nificant authority pursuant to the laws of the United States is an

‘Officer of the United States’ and must, therefore, be appointed in

the manner prescribed by § 2, cl. 2, of [Article II]. . . .” Id.

at 126.38 The Buckley Court observed that the Act assigned the

commission “primary responsibility for conducting civil litigation

38
See also Edmond v. United States, 520 U.S. 651, 662 (1997);
Weiss v. United States, 510 U.S. 163, 169-70 (1994); Freytag v.
Comm'r, 501 U.S. 868, 881 (1991).

34
in the courts of the United States for vindicating public rights”

and that “[s]uch functions may be discharged only by persons who

are ‘Officers of the United States.’” Id. at 140 (emphasis added).

Defendants argue that “[t]he authority of qui tam relators to

initiate, conduct, and terminate litigation on behalf of the United

States brings them within the Buckley standard.” Defendants fur-

ther note that when the government does not intervene, the relator

has primary responsibility for the litigation. Thus, defendants

reason, in cases in which the government does not intervene, the

litigation of qui tam actions by relators violates the Appointments

Clause because in such cases relators exercise “significant author-

ity pursuant to the laws of the United States,” Buckley, 424 U.S.

at 126, but are not properly appointed officers of the United

States.

The government responds with reasoning similar to the ma-

jority’s by arguing that the Appointments Clause applies only to

federal government appointees and that “since the decision in Buck-

ley deals with what functions federal officials can properly carry

out, it tells us nothing about the constitutional status of private

persons such as qui tam relators.” This argument proves too much.

Under this reasoning, all that Congress or the President must do to

circumvent the strictures of the Appointments Clause is to delegate

authority to someone who has not officially been appointed to any

federal office.

35
 Defendants’ view of the Appointments Clause has more fidelity

to the Constitution. They argue that the Appointments Clause pro-

tects against power improperly granted, whether to federal employ-

ees or private citizens.39 Thus, defendants observe that it does

not matter whether relators are more properly described as officers

who have not properly been appointed or as non-officers who there-

fore are not qualified to sue on behalf of the government. Either

way, the Appointments Clause is violated when a relator sues with-

out government intervention.

The government alternatively attempts to show that relators do

not need to be appointed, because they are litigating only for

themselves. This argument also is unavailing. The holding in Ver-

mont Agency of Natural Resources v. United States ex rel. Stevens,

529 U.S. 765 (2000), that relators are only partial assignees

39
The Supreme Court has put it this way:

The structural principles embodied in the Appointments Clause do not
speak only, or even primarily, of Executive prerogatives simply be-
cause they are located in Article II. The Appointments Clause pre-
vents Congress from dispensing power too freely; it limits the uni-
verse of eligible recipients of the power to appoint. Because it
articulates a limiting principle, the Appointments Clause does not
always serve the Executive’s interests. For example, the Clause
forbids Congress to grant the appointment power to inappropriate
members of the Executive Branch. Neither Congress nor the Executive
can agree to waive this structural protection. ‘The assent of the
Executive to a bill which contains a provision contrary to the Con-
stitution does not shield it from judicial review.’ The structural
interests protected by the Appointments Clause are not those of any
one branch of Government but of the entire Republic.

Freytag, 501 U.S. at 880 (quoting INS v. Chadha, 462 U.S. 919, 942 n.13 (1983)).

36
plainly means that relators also sue partly on behalf of the gov-

ernment.

The government puts forth another alternative argument for why

the Appointments Clause is not violated by the FCA. It is the same

argument made by the majority in contending that the FCA does not

violate the Take Care ClauseSSthat relators litigate “for” the gov-

ernment but not “as” the government. This semantic distinction is

as unavailing in the context of the Appointments Clause as it was

in that of the Take Care Clause.

Neither the government nor the majority cites any authority

holding that litigating for the government is different from liti-

gating as the government, and indeed there is no difference for

purposes of this case. No matter how one describes what the relat-

or does, the fact remains that he sues under the laws of the United

States, based on claims owned by the United States and to vindicate

public injury. This is made obvious by, inter alia, the fact that

settlements cannot be approved without the government’s

acquiescence.

It is because relators are not litigating only for themselves

that the approval of the party they are representingSSthe

governmentSSis needed for settlements. That the persons carrying

out these functions on behalf of the government are properly ap-

pointed is the very purpose and command of the Appointments Clause.

37
 Finally, the government attempts to argue that neither the Ap-

pointments Clause nor the Take Care Clause is violated by the FCA,

because the Constitution allows a private person not appointed by

the Executive to sue under statutes like title VII, which suits are

said to vindicate public interests. In making this argument, the

government erroneously conflates the type of claim pursued in a

title VII suit, in which a private citizen sues to vindicate a per-

sonal injury and incidentally serves a public purpose with the type

of claim pursued in a relator suit under the FCA, in which a pri-

vate person sues solely to vindicate an injury to the government

and is rewarded with a share of the recovery.

The collapsing of private and public injury explicit in the

government’s reasoning would lead to the ultimate conclusion that

all citizens must be allowed to sue to enforce all laws, because

every law, even in the core “private” law areas of tort and con-

tract, can be said to serve the purpose of the sovereignSSi.e., to

regulate individuals’ conduct through law. Although such a system

may be interesting to contemplate, it has not been accepted in

American jurisprudence. Instead, the public/private distinction,

however flawed, has been maintained as a key determinant of what is

government action and when such action is permissible. Thus, the

government’s title VII analogy fails, and the FCA’s violation of

the Appointments Clause remains.

38
 IV. Stevens Left Open the Constitutionality of Qui tam Suits
Under Article II.

As we know, Stevens held that relators in qui tam suits have

standing to sue under the FCA. From this holding, the majority

claims to be “persuaded that it is logically inescapable that the

same history which was conclusive on the Article III question in

Stevens . . . is similarly conclusive with respect to the Arti-

cle II question concerning this statute.”40 If this logical ines-

capability is true, it seems to have been missed by a majority of

the Supreme Court. Instead, the six-member majority in Stevens ex-

pressly disclaimed any view with regard to Article II challenges,

stating explicitly that Article II was neither presented to the

Court by the parties, nor rose to a jurisdictional issue that the

Court was required to resolve sua sponte.41 Moreover, the fact that

the majority in Stevens took pains to point out that it was not

deciding the constitutionality of qui tam suits under Article II

40
The majority cites only the dissent in Stevens to support its view, saying, “[i]ndeed, the dissent
in Stevens noted that history alone resolves the question of whether the qui tam provisions in the FCA
violate Article II . . . .”
41
See Stevens, 529 U.S. at 778 n.8 (“[W]e express no view on the question
whether qui tam suits violate Article II, in particular the Appointments Clause
of § 2 and the ‘Take Care’ Clause of § 3. Petitioner does not challenge the qui
tam mechanism under either of those provisions, nor is the validity of qui tam
suits under those provisions a jurisdictional issue that we must resolve here.
See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102 n.4 (1998)
(“[O]ur standing jurisprudence, . . . though it may sometimes have an impact on
Presidential powers, derives from Article III and not Article II.”); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-78, (1992). The dissent
implicitly attacks us for ‘introduc[ing] [this question] sua sponte.’ We raise
the question, however, only to make clear that it is not at issue in this case.
It is only the dissent that proceeds to volunteer an answer.”).

39
suggests strongly that the Court did not think this issue is easily

decided by history.

In fact, Justice Scalia, the author of the majority opinion in

Stevens, and Justice Thomas and perhaps Justice Kennedy, seem to

have reservations as to the constitutionality of qui tam actions

under Article II. In Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167 (2000) (“FOE”), which was decided

just four months before Stevens, Justices Scalia and Thomas, while

noting that the case (like Stevens) did not raise Article II is-

sues,42 nevertheless described some of the potentially troubling

loss of control that can arise from citizen suits brought without

government intervention:

By permitting citizens to pursue civil penalties payable
to the Federal Treasury, the Act does not provide a me-
chanism for individual relief in any traditional sense,
but turns over to private citizens the function of en-
forcing the law. . . .

To be sure, the EPA may foreclose the citizen suit
by itself bringing suit. This allows public authorities
to avoid private enforcement only by accepting private
direction as to when enforcement should be under-
takenSSwhich is no less constitutionally bizarre. Elect-
ed officials are entirely deprived of their discretion to
decide that a given violation should not be the object of
suit at all, or that the enforcement decision should be
postponed. See [33 U.S.C.] § 1365(b)(1)(A) (providing

42
See FOE, 528 U.S. at 719. (“Article II of the Constitution commits it
to the President to ‘take Care that the Laws be faithfully executed,’ and pro-
vides specific methods by which all persons exercising significant executive
power are to be appointed. As Justice KENNEDY’S concurrence correctly observes,
the question of the conformity of this legislation with Article II has not been
arguedSSand I, like the Court, do not address it.”) (Scalia, J., dissenting).

40
 that citizen plaintiff need only wait 60 days after giv-
ing notice of the violation to the government before pro-
ceeding with action). This is the predictable and in-
evitable consequence of the Court’s allowing the use of
public remedies for private wrongs.

Id. at 210 (Scalia, J., dissenting) (citations omitted).43

Further, in FOE, Justice Kennedy wrote a concurring opinion

explicitly recognizing that Article II challenges raise "[d]iffi-

cult and fundamental questions" which "are best reserved for a lat-

er case."44 Thus, a third member of the Stevens majority appears

43
See also id. at 209 n. 2 (Scalia, J., dissenting) (“The Court points out
that the government is allowed to intervene in a citizen suit, but this power to
‘bring the Government’s views to the attention of the court,’ is meager substi-
tute for the power to decide whether prosecution will occur. Indeed, according
the Chief Executive of the United States the ability to intervene does no more
than place him on a par with John Q. Public, who can interveneSSwhether the gov-
ernment likes it or notSSwhen the United States files suit.”)
44
Justice Kennedy wrote:

Difficult and fundamental questions are raised when we ask whether
exactions of public fines by private litigants, and the delegation
of Executive power which might be inferable from the authorization,
are permissible in view of the responsibilities committed to the
Executive by Article II of the Constitution of the United States.
The questions presented in the petition for certiorari did not
identify these issues with particularity; and neither the Court of
Appeals in deciding the case nor the parties in their briefing be-
fore this Court devoted specific attention to the subject. In my
view these matters are best reserved for a later case. With this
observation, I join the opinion of the Court.

FOE, 528 U.S. at 197 (Kennedy, J., concurring). Justice Kennedy’s concurrence
seems to have been made to clarify that a passing remark made in a footnote by
the majority opinion in FOE did not decide the issue of Article II
constitutionality of citizen suits. The footnote to the majority opinion states
that

the dissent’s broader charge that citizen suits for civil penalties
under the Act carry ‘grave implications for democratic governance’
seems to us overdrawn. Certainly the federal Executive Branch does
not share the dissent's view that such suits dissipate its authority
to enforce the law. In fact, the Department of Justice has endorsed
this citizen suit from the outset, submitting amicus briefs in sup-
port of FOE in the District Court, the Court of Appeals, and this

41
to harbor doubts about the constitutionality of citizen suits under

Article II. The majority’s arguments that Stevens “essentially

resolves the issue before this court” is therefore well off the

mark.

The obvious question, then, is how the majority in Stevens

could have found that history is so important in determining Arti-

cle III standing to sue but perhaps less important in determining

constitutionality under Article II. Fortunately, Stevens defini-

tively answers this question:

We are confirmed in this conclusion [regarding standing]
by the long tradition of qui tam actions in England and
the American Colonies. That history is particularly rel-
evant to the constitutional standing inquiry since, as we
have said elsewhere, Article III’s restriction of the ju-
dicial power to ‘Cases’ and ‘Controversies’ is properly
understood to mean ‘cases and controversies of the sort
traditionally amenable to, and resolved by, the judicial
process.’

Stevens, 529 U.S. at 766 (emphasis added). In other words, the

nature of the standing inquiry dictates that special attention be

paid to historical practice. Such extreme deference need not be

given, by contrast, within the context of Article II challenges.

Court. As we have already noted, the Federal Government retains the
power to foreclose a citizen suit by undertaking its own action.
And if the Executive Branch opposes a particular citizen suit, the
statute allows the Administrator of the EPA to ‘intervene as a mat-
ter of right’ and bring the Government's views to the attention of
the court.

FOE, 528 U.S. at 188 n.4.

42
 Furthermore, in Stevens there existed a reasonable

interpretation of the FCA that satisfied the requirements of

Article III. The Court, informed by the long history of qui tam

actions, interpreted the FCA as making the relator a partial

assignee of the government’s claim. In doing so, the Court

followed established law that “the assignee of a claim has standing

to assert the injury in fact suffered by the assignor.” Id. Thus,

in the end, history merely helped the Court choose an

interpretation of the statute that was plainly constitutional.

The Article II issues raised by the FCA, however, were not so

easily disposed of by history, and thus the majority did not ad-

dress them in Stevens. The Court’s conclusion that the relator is

a partial assignee allowed her into the courtroom but did not take

care of the constitutional issued raised by the fact of an unac-

countable private citizen’s litigating on behalf of the

governmentSSand there can be no mistake that, in the wake of

Stevens, a relator is litigating on behalf of the government,

because Stevens explicitly states that a realtor is only a partial

assignee, and accordingly, the part of the claim the relator is not

litigating for himself he is litigating for the government.

Therefore, rather than helping the majority, the reasoning in

Stevens supports the defendants’ position by showing that even

though the government signs over to the relator sufficient partial

interest in the litigation to qualify for Article III standing, the

43
majority interest that is not signed overSSand therefore still

owned by the governmentSSmust be prosecuted by an officer of the

United States under the Appointments Clause, and must be faithfully

managed by the Executive under the Take Care Clause.

V. History Is Not Controlling.

The majority believes that even if Stevens does not settle

this issue, the long historical use of “qui tam” statutes somehow

constitutionalizes them. The majority quotes Justice Stevens’s

dissent in Stevens “[t]hat [historical] evidence, together with the

evidence that private prosecutions were commonplace in the 19th

century . . . is . . . sufficient to resolve the Article II ques-

tion . . . ” (quoting Stevens, 529 U.S. at 863. (Stevens, J., dis-

senting).45 Long useSSeven dating back to the earliest Con-

gressSScannot insulate a practice from constitutional challenge,

however, as all three judges on the original panel agreed.46

45
Under the majority’s extreme deference to historical practice, the history of qui tam statutes
authorizing private enforcement of criminal statutes would be enough to allow qui tam relators to
prosecute criminal suits on behalf of the government, which even the majority acknowledges is
unconstitutional.
46
See, e.g., Riley, 196 F.3d at 543 (Stewart, J., dissenting) (“I heartily
agree [] that history does not ‘by itself’ validate the constitutionality of the
qui tam relator provisions of the [FCA]”). See also Marsh v. Chambers, 463 U.S.
783, 790 (1983) (“Standing alone, historical practice cannot justify contemporary
violations [of the Constitution.]”); Walz v. Tax Comm'r, 397 U.S. 664, 678 (1970)
(“It is obviously correct that no one acquires a vested or protected right in
violation of the Constitution by long use, even when that span of time covers our
entire national existence and indeed predates it.”).

44
 Further, although action taken by the earliest Congress has

been looked to as evidence of the founders’ interpretation of the

meaning of the Constitution, courts logically have given less

weight to acts passed quickly and without deliberation as to their

constitutionality.47 A careful review of the history of qui tam

laws leads one to conclude that they should be classified among

those statutes that have been passed more from expediency than from

reasoned constitutional analysis; and further, that history pro-

vides no indication of what were the founders’ general opinions of

the constitutionality of qui tam statutes, nor what would have been

their particular opinion of this case in which an unappointed, un-

accountable citizen sues on the government’s behalf without gov-

ernment participation.

The government disagrees, arguing that a number of the orig-

inal qui tam statutes were similar to the FCA. Defendants contend

that these early qui tam statutes were quite different from the

modern FCA. For two reasons, both sides can make hay from the

earliest qui tam statutes. First, some do not specify whether they

allow a private citizen to bring suit; and second, the term “qui

47
For example, in holding that appointing paid chaplains to open legis-
lative proceedings does not violate the Establishment Clause, the Supreme Court
reviewed the Framers’ extensive debates regarding the practice’s
constitutionality and drew a distinction between actions carefully considered by
the Framers and those “taken thoughtlessly, by force of long tradition and
without regard to the [constitutional] problems.” Marsh, 463 U.S. at 791. The
Court also noted that “the unambiguous and unbroken history of more than 200
years” indicated that the practice “ha[d] become part of the fabric of our
society.” Id. at 792.

45
tam” has been used to describe a wide variety of statutes, ranging

from those giving rewards to informers to medieval English statutes

allowing private citizens to prosecute criminals and keep a portion

of the forfeiture.

This ambiguity and the broad coverage of historical qui tam

statutes have allowed widely divergent interpretations of the first

such laws. Defendants assert that only three of the qui tam stat-

utes passed by the first Congress permitted a private citizen to

sue on the government’s behalf when he had not suffered personal

injury, and they characterize the rest of the early qui tam stat-

utes as “simple informer laws” that merely awarded informers a

share in any recovery secured by the government. Conversely, the

government quotes United States ex rel. Marcus v. Hess, 317 U.S.

537, 541 n.4 (1943), which states: “Statutes providing for a

reward to informers which do not specifically either authorize or

forbid the informer to institute the action are construed to au-

thorize him to sue” (citation omitted). From this the government

assumes that all twenty of the early qui tam statutes must have

allowed citizens to sue on its behalf.

Although the precise contours of the early qui tam statutes

are difficult to distinguish, the defendants’ interpretation of

them is more accurate than is the government’s. Even if the gov-

ernment is correct in stating that early qui tam statutes that were

silent on the issue of enforcement allowed citizen suits, it still

46
appears that these early qui tam statutes required a citizen to

have suffered some private injury before he could sue on behalf of

the governmentSSunlike the FCA, which allows suit solely based on

injury to the government.48

Moreover, it is undisputed that Congress largely abandoned the

use of qui tam statutes in the nineteenth century. In fact, all of

the qui tam provisions enacted by the First Congress have been re-

pealed. See Note, The History and Development of Qui tam, 1972

WASH. U. L.Q. 81, 97-101. Later Congresses enacted only seven qui

tam statutes,49 and none was passed after 1871. The few qui tam

48
Many of the early qui tam statutes allowed citizens to keep part of the
recovery gotten by the government as a reward for informing, or involved cases
in which the citizen had suffered a private injury. See Act of July 31, 1789,
ch. 5, § 38, 1 Stat. 29, 48; Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 55, 60;
Act of Aug. 4, 1790, § 69, 1 Stat. 145, 177 (customs and maritime laws providing
for a share of recovery to informers); Act of Sept. 2, 1789, ch. 13, § 8, 1 Stat.
65, 67 (penalties levied against Treasury Department officials for violation of
prohibitions attached to their office); Act of March 3, 1791, ch. 8, § 1, 1 Stat.
215 (same). Two other statutes authorized government appointed census-takers to
bring suits against uncooperative citizens and to retain half of any fines ob-
tained. See Act of March 1, 1790, ch. 2, § 6, 1 Stat. 101, 103; Act of July 5,
1790, ch. 25, § 1, 1 Stat. 129. Act of July 31, 1789, ch. 5, § 29, 1 Stat. 29, 45
(permitting recovery against customs officials who had failed to display a table
of fees and duties); Act of Aug. 4, 1790, ch. 35, § 55, 1 Stat. 145, 173 (same);
Act of July 20, 1790, ch. 29, § 1, 1 Stat. 131 (allowing recovery against ships'
masters who failed to contract with crew); id. § 4, 1 Stat. 131, 133 (permitting
recovery against persons harboring runaway seamen). Two other statutory pro-
visions permitted only injured parties to sue. See Act of May 31, 1790, ch. 15,
§§ 2, 6, 1 Stat. 124, 125-26 (allowing authors and publishers to recover from
copyright violators).
49
See (1) Act of Feb. 20, 1792, ch. 7, § 25, 1 Stat. 232, 239 (providing
that informer could sue for penalties under postal statute and keep half); re-
enacted Mar. 3, 1845, ch. 43, § 17, 5 Stat. 732, 738; (2) Act of Mar. 22, 1794,
ch. 11, §§ 2, 4, 1 Stat. 347, 349 (providing that individual could prosecute on
government's behalf for slave trading); reenacted by Act of Mar. 26, 1804,
ch. 38, § 10, 2 Stat. 283, 286; Act of Mar. 2, 1807, ch. 22, § 3, 2 Stat. 426;
Act of Mar. 4, 1909, ch. 321, §§ 254-57, 35 Stat. 1138, 1140; (3) Act of July 6,
1797, ch. 11, § 20, 1 Stat. 527, 532 (providing that informer received half of
penalties related to duties on paper productsSSuncertain whether informer could
sue); adopted by Act of Feb. 28, 1799, ch. 17, § 5, 1 Stat. 622, 623 (same for

47
statutes that remain do not allow private parties to sue based on

a proprietary interest belonging to the government; those acts

involve relatively arcane areas and are now essentially dormant.

Finally, at the time the first qui tam acts were passed, the

executive was in its infancy. There was no DOJ, and the nugatory

prosecutorial arm of the Executive could not adequately monitor

fraud committed by government contractors. Thus, the exigencies of

a weak Executive led Congress to pass a number of qui tam acts.

The first version of the FCA likewise was passed in another

time of great exigencySSduring the Civil War. Again, the Executive

was unable to monitor and prosecute fraud by defense contractors

occurring in a war-torn country in which military requisitions had

multiplied enormously. Congress resurrected the qui tam suit in an

attempt to grapple with this problem. Thus, the FCA was enacted by

a desperate Congress that did not have the time or inclination to

engage in a reasoned discussion of constitutionality.

penalties involving altering stamp duties); (4) Act of May 3, 1802, ch. 48, § 4,
2 Stat. 189, 191 (providing that individual could prosecute on government's be-
half for employment of other than a “free white person” in postal service);
(5) Act of Aug. 5, 1861, ch. 45, § 11, 12 Stat. 292, 296-97 (providing that indi-
vidual could sue import assessor acting without taking oath, and keep half the
fine); (6) Act of July 8, 1870, ch. 230, § 39, 16 Stat. 198, 203 (providing that
individual could sue on government's behalf for unlawful contracting with Indi-
ans); reenacted by Act of May 21, 1872, ch. 177, § 3, 17 Stat. 136, 137. The
First Congress's statute regarding unlawful trading with Indians was also re-
enacted. Act of Mar. 1, 1793, ch. 19, § 12, 1 Stat. 329, 331; Act of May 19,
1796, ch. 30, § 18, 1 Stat. 469, 474; Act of Mar. 30, 1802, ch. 13, § 18, 2 Stat.
139, 145; Act of June 30, 1834, ch. 161, § 27, 4 Stat. 729, 733-34.

48
 Today the Executive is anything but weak.50 A bounty system

may still be needed to root out some fraud, but there is no need to

deputize private citizens to prosecute the claims of the United

States. Thus, the history of qui tam statutes does not prove par-

ticularly useful in determining the constitutionality of the FCA in

cases in which the government does not intervene, because there is

no evidence of an extensive history of statutes like the FCA that

allow a citizen to sue on the government’s behalf without the gov-

ernment’s being involved in the suit, and because qui tam statutes

were adopted in times of exigency and without consideration of

separation of powers issues.51 Because the FCA violates the Take

Care Clause, the Appointments Clause, and separation of powers

principles, I respectfully dissent.

50
The DOJ now exists as an executive department with more than
120,000 employees and an annual budget of approximately $ 21.5
billion. See DOJ Annual Report 1 (2000).
51
Further, a realistic view of separation of powers recognizes that as times
change and government evolves, the branches' relative power vis a vis each other
changes as well. Thus, when the FCA was first enacted in 1863, it did not en-
croach as much on the Executive, in that it did not take away work that the Ex-
ecutive otherwise could be doing; instead, it allowed prosecutions of fraud feas-
ors whom the Executive could not otherwise have pursued. Thus, the encroachment
on the Executive was less than it is today, because the Executive now exists as
a robust branch that could prosecute the claims be given to relators by the FCA.

Today, giving suits to relators does encroach more on Executive power because,
with the full prosecutorial power of the DOJ behind it, the Executive could
easily bring these suits if it wanted to. Therefore, in cases such as this, in
which the government has declined to intervene, it is likely that that decision
is not a result of limited resources, but instead because the government has
decided for some reason that to pursue the claim is inappropriate. To encroach
on this prosecutorial discretion now is thus a greater violation of separation
of powers principles than was the historic use of the FCA.

49