High Profile Pleading: Appellant Joyce Riley's Brief on Rehearing En Banc of 5th Circuit's 'Qui Tam' Decision

Id. No bright line test can define when Congress has unconstitutionally interfered with the Executive Branch’s constitutional powers. Instead, the Court must balance the potential for interference with constitutional duties against Congress’s proper constitutional objectives.

The reasoning of the panel majority is flawed because it attempts to create a bright-line test from the Supreme Court’s opinion in Morrison. The panel majority argues that the test of whether congressional action impermissibly interferes with the Executive’s litigative function is as follows: “whether the Executive Branch retains sufficient ‘control’ over the litigation ‘to ensure that the President is able to perform his constitutionally assigned duties.’” Riley v. St. Luke’s Episcopal Hosp., No. 97-20948, 1999 WL 1034213, at *8 (Nov. 22, 1999) (citing Morrison, 487 U.S. at 696).

The majority’s “test” misses the real method of analysis in Morrison in three respects. First, Morrison rejects a bright line test under which the constitutionality of a provision depends on whether it restricts a particular Executive Branch power.

Morrison concerned the constitutionality of the independent counsel provisions of the Ethics in Government Act (“EGA”). The Court held that the independent counsel provisions of the EGA did not violate the separation of powers, even though the Court recognized that “[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.” Morrison, 487 U.S. at 695. The Court also recognized that “[t]here is no real dispute that the functions performed by the independent counsel are ‘executive’ in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.” Id at 691. The Morrison court held that, even though the independent prosecutor provisions restrict the President’s constitutional powers under the Take Care Clause, those restrictions are constitutionally permitted. See id. at 693-96. Thus, although Congress may not “impermissibly undermine” Executive Branch powers, id. at 694, it may restrict the Executive’s prosecutorial discretion.

Second, Morrison establishes that the separation of powers analysis requires a balancing of constitutional factors. The Morrison Court considered the following factors:

(1) The act does not involve “an attempt by Congress to increase its own powers at the expense of the Executive Branch,” id. at 694;

(2) The act does not involve “any judicial usurpation of properly executive functions,” id. at 695;

(3) The act reduces “the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity,” id. at 696; and

(4) The act gives the Executive Branch some control over the independent counsel, id.

Thus, the degree of Executive Branch control over the independent counsel was not the sole, or even a primary, reason for the decision in Morrison. It was only one of many factors the Court considered in determining that the act was consistent with the separation of powers doctrine. The separation of powers determination should be made by balancing the various factors noted in Morrison, not by isolating a single factor to the exclusion of others.

Third, the majority improperly assumes that Morrison “represents the outer boundary of constitutionally permissible encroachment on executive powers.” See Riley, at *11. Nothing in Morrison suggests that this is true. The holding of Morrison, combined with the paucity of cases finding that restrictions on Executive Branch prosecutorial authority are unconstitutional, indicates the Supreme Court is permissive with respect to intrusions on the Executive Branch’s powers — particularly in cases, such as this one, where there is no corresponding aggrandizement of Congressional power.

B. Nurse Riley’s Qui Tam Action Does Not Impermissibly Undermine the Executive Branch’s Article II Powers.

1. There is no evidence of any actual restriction on the Executive Branch’s exercise of prosecutorial discretion in this case.

The constitutionality of restrictions on the Executive’s Article II powers could be a potential concern in some qui tam cases, such as where a relator seeks to prevent the government from dismissing a qui tam action against a defense contractor for national security reasons, or where a relator questions whether the Executive may intervene to prevent the relator from advocating a litigation position contrary to Executive priorities. In this case, however, the constitutionality of any restrictions on Executive Branch powers is not at issue because the Executive has not actually sought to exert its powers. In fact, in its briefs before this Court, the government has supported Nurse Riley’s right to bring and prosecute this claim. It makes little sense to invalidate the FCA qui tam provisions for unconstitutionally interfering with Executive Branch powers in a case where there is not only a complete absence of evidence of such interference, but where the Executive Branch has indicated its support of Nurse Riley’s suit.

2. The constitutionality of the qui tam statute’s limits on Executive Branch power should not be resolved in this case

a. The constitutionality of the statute’s limits on Executive Branch power should be resolved in cases that actually concern those limits.

The constitutionality of any restrictions on the Executive Branch’s prosecutorial power over qui tam actions should not be decided in this case. There is no restriction on the government’s prosecutorial power at issue here. Questions of constitutionality should be decided only when necessary to resolve a case. The Supreme Court has explained:

“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” It has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions . . . or to decide any constitutional question in advance of the necessity for its decision . . . or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied . . . .” “It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”

Clinton, 117 S. Ct. at 1642 (quoting Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 570, n.34 (1947)) (citations omitted) (ellipses in original).

The panel’s majority opinion does not explain how the Executive’s exercise of prosecutorial discretion has been undermined in this particular case. The majority argues that FCA qui tam actions can encroach on the Executive’s prosecutorial discretion in two ways: (1) by preventing the Executive’s discretion to not proceed with the suit, and (2) by limiting the Executive’s control over the suit. See Riley, at *8. Neither hypothetical encroachment is at issue in this case because the Executive Branch has not sought to prevent, or to control, this litigation.

First, the Executive Branch has not challenged whether Nurse Riley’s action may proceed. Ironically, the separation of powers doctrine is urged here by Defendants who are attempting to define the Executive Branch’s interests for it. The Executive disagrees with them. It has argued that its prosecutorial discretion has not been impaired by Nurse Riley’s initiation of this case. See Brief for the Intervenor United States at 45. This is simply not a case where the Executive’s discretion to not proceed with a prosecution has been in any way impaired.

Second, no conflict exists between the Executive Branch and Nurse Riley regarding the degree of control the Executive Branch may have over the prosecution of this suit. The Executive correctly argues that the FCA “sufficiently protects the Executive’s prerogatives” because “the statute permits the Government to intervene in a pending qui tam action and to conduct the litigation. . . .” Brief for the Intervenor United States at 46. Neither the panel majority (Riley, at * 8-10) nor any party to this suit has demonstrated any way in which the Executive Branch has been prevented from exercising any control over this case. The constitutionality of particular limits on the Executive’s control would best be decided in cases where those controls are actually at issue.

b. The constitutionality of the qui tam statute should be resolved by judicial construction of the statute, not by a blanket invalidation of it.

The related doctrine of constitutional doubt also counsels against reaching the separation of powers issue in this case. The doctrine of constitutional doubt provides that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, [a court] . . . will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” New York v. United States, 505 U.S. 144, 170 (1992) (internal quotations omitted); see also United States v. Burian, 19 F.3d 188, 190-91 (5th Cir. 1994) (applying “the long-standing rule that federal courts have a duty to interpret statutes in a manner consistent with the Constitution, if such an interpretation is possible.”). This Court should apply the doctrine of constitutional doubt to find a reasonable construction of 31 U.S.C. � 3730 that best avoids any constitutional difficulties. See, e.g., infra Part I.C.2.

c. The facial invalidity challenge in this case is inappropriate because there are circumstances under which the FCA qui tam provisions are valid.

The panel majority’s holding requires a finding that the FCA qui tam provisions are facially invalid, rather than invalid “as applied.” “The essence of a facial challenge usually is that the statute on its face — without regard to how it affects the particular litigants — violates the law.” Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th Cir. 1995). Because the panel majority cites no evidence that the Executive’s prosecutorial authority has been restricted in this case, it is a facial challenge to all qui tam actions in which the Government does not intervene.

A facial challenge is inappropriate in this case because, even under the panel majority’s separation of powers argument, there are cases such as this one where the qui tam provisions may be implemented in a constitutional manner. A facial challenge is only appropriate if “no set of circumstances exist under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

In cases where the Government has not disagreed with the relator’s decision to proceed or any other choices about the prosecution of the suit, the application of the Act does not restrict the Executive’s prosecutorial discretion. Any particular restrictions may best be interpreted in the context of an actual conflict between the Government and the qui tam relator. Further, to the extent any particular restriction violates the separation of powers clause, the Court can best rule on the constitutionality of that particular restriction, without invalidating the FCA qui tam scheme altogether in this case, where no actual conflict exists.

C. Other Qui Tam Actions Where the Government Does Not Intervene Do Not Impermissibly Undermine the Executive Branch’s Article II Powers.

1. The separation of powers challenge has been rejected by other courts.

The separation of powers challenge to qui tam actions has been explicitly rejected by every other court addressing it. See, e.g., United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 749-57 (9th Cir. 1993), cert. denied, 510 U.S. 1140 (1994) (“Nor do the [qui tam] provisions disrupt the ‘proper balance’ between the branches . . . .”); United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1154 (2d Cir. 1993), cert. denied, 508 U.S. 973 (1993) (“Such [qui tam] suits do not constitute an intrusion into areas committed to other governmental branches . . . .”); United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir. 1994) (“The qui tam provisions adopted by Congress do not contradict the constitutional principle of separation of powers.”). In this case, the panel majority would extend the application of the separation of powers doctrine beyond any prior holding.

2. In qui tam actions generally, the Executive Branch is free to exercise discretion to prevent the litigation by dismissing the case.

The panel majority incorrectly argues that the FCA qui tam provisions encroach on the Executive’s “discretion to decide whether to prosecute a claim.” Riley, at *8. This argument ignores the Executive’s ability to freely dismiss any FCA qui tam action. See 31 U.S.C. � 3730(c)(2)(A). The FCA expressly permits the government to dismiss the qui tam action “notwithstanding the objection of the person initiating the action.” See id.

The panel majority improperly construes the FCA to place some limit on the Executive’s power to dismiss. It argues that “[t]he Executive may not freely dismiss a qui tam action; if the relator objects to the decision to dismiss, the government must notify the relator of the filing of the motion to dismiss, and the court must grant the relator a hearing before deciding whether to permit dismissal.” Riley, at *9. Notice to parties of motions and court permission for disputed dismissals are required in all civil cases. See Fed. R. Civ. P. 5a and 41(a)(2). Thus, the panel majority appears to assume this provision creates some additional substantive limitation on the Executive’s power to dismiss.

The panel majority’s construction violates the rule of constitutional doubt because it construes the Executive’s right to dismiss too narrowly. Under the rule of constitutional doubt, the Court should adopt a plausible construction where that construction will avoid the constitutional issue. See supra Part I.B.2.b. A plausible constitutional construction is available in this case. The FCA should not be read to limit the Executive’s right to dismiss. The statute itself contains no such limit. It provides: “[t]he government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for hearing on the motion.” 31 U.S.C. � 3730(c)(2)(A) (emphasis added). The qui tam statute “does not specify any conditions under which the relator may block the motion [to dismiss].” United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1144 (9th Cir. 1997), cert. denied, 119 S. Ct. 794 (1999). Accordingly, “[i]t is not clear whether in practice this notice and hearing requirement has amounted to much of a hurdle for the government.” Kelly, 9 F.3d at 753 n.11. [FOOTNOTE 1] If limiting the government’s ability to dismiss impairs the statute’s constitutionality, this Court has a duty to adopt a construction of the statute that permits the government broad, if not complete, discretion to dismiss qui tam actions. Such a construction is supported by the plain language of the statute and is required by the doctrine of constitutional doubt.

The panel majority also incorrectly argues that the power to dismiss is not enough: “the Executive’s prosecutorial discretion must include the power to decide whether to bring suit.” Riley, at *9. The opinion offers no reasoning to support, and no authority that has held, that the power to decide whether to bring the suit is an essential Executive Branch power that may not be limited by permitting a private individual to decide to proceed with qui tam action. Nonetheless, the Executive’s power to freely dismiss qui tam suits serves the same purpose. If the Executive does not wish a qui tam action to proceed, it may simply dismiss it.

The Morrison court upheld independent counsel provisions that give the Executive even less power to stop litigation than it has in FCA qui tam cases. Although the Ethics in Government Act does not significantly restrict the Executive’s decision to initiate an independent counsel proceeding, it completely restricts the Executive’s authority to dismiss an independent counsel prosecution once it has begun. The office of the independent counsel may only be terminated by (1) the independent counsel, or (2) the special division of the court. See 28 U.S.C. � 596(b). Although the Attorney General has the power to remove the independent counsel for “good cause,” subject to a judicial review of that removal, this power does not include the power to terminate the prosecution. See 28 U.S.C. � 596. In other words, the individual prosecuting the action may be replaced, but the prosecution may not be stopped by the Executive Branch. The Supreme Court in Morrison nonetheless held that the independent counsel provisions did not impermissibly undermine Executive Branch powers. See 487 U.S. at 695.

The Executive Branch has as much or greater control over whether the litigation may proceed in FCA qui tam cases than it does under the independent counsel provisions affirmed in Morrison. See Kelly, 9 F.3d at 751-55 (finding that “the Executive Branch exercises at least an equivalent amount of control over qui tam relators as it does over independent counsels”). The Executive Branch may dismiss a qui tam action if it does not approve of its progress. 31 U.S.C. � 3730 (c)(2)(A). It may not dismiss an independent counsel prosecution once it has begun. The panel majority’s reasoning is fundamentally flawed because it focuses too narrowly on the moment the qui tam prosecution is initiated, without considering that the power to dismiss gives the Executive Branch even greater control to prevent a qui tam action from proceeding at any stage of the case.

3. In qui tam actions generally, the Executive Branch retains the authority to exercise broad prosecutorial discretion over the conduct of the case.

The panel majority downplays the actual control the Executive Branch may exercise over FCA qui tam actions. The FCA qui tam provisions preserve Executive control over the litigation to as much or a greater extent than the independent counsel provisions in Morrison.

The two most significant aspects of the Executive’s control over the conduct in FCA qui tam cases are (1) its ability to intervene and take “primary responsibility for prosecuting the action,” and (2) its authority to dismiss the action. See 31 U.S.C. �� 3730(c) and 3730(c)(2)(A). In FCA qui tam actions, the Executive Branch has broad discretion to intervene. The FCA does not contain any restriction on the Executive’s reasons for exercising its discretion to proceed with the suit initially. It expressly provides the Executive the power to take responsibility for prosecuting the action within 60 days of receiving the qui tam complaint. See 31 U.S.C. � 3730(b)(4). The FCA also provides that, upon a showing of good cause, the Executive may intervene at any later time. See 31 U.S.C. � 3730(c)(3). The Executive has a right of appeal, even if it did not intervene in the lower court. See Searcy, 117 F.3d at 159.

When it intervenes, the Executive exercises the primary control over the conduct of the litigation. The FCA expressly provides that if the Executive proceeds, “it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action.” 31 U.S.C. � 3730(c)(1). Additionally, the Executive “shall not be bound by an act of the person bringing the action.” Id. The only restriction placed on the Executive’s control over the litigation is minimal: if the qui tam relator objects to the Executive’s settlement of the action, the Executive must obtain a court approval of the settlement as “fair, adequate, and reasonable.” See 31 U.S.C. � 3730(c)(2)(B).

As discussed above, the Executive also wields the power to dismiss any qui tam action. The Executive may dismiss an action even if it has not intervened. See Juliano v. Federal Asset Disposition Ass’n, 736 F. Supp. 348 (D.D.C. 1990), aff’d 959 F.2d 1101 (D.C. Cir. 1992). It also may intervene in a qui tam case and dismiss it. See Sequoia Orange Co. 151 F.3d 1139 (permitting Government objection over relator’s objection in a case where “the government intervened several years after the litigation began and sought dismissal”). As discussed above, the statute does not restrict the Government’s reasons for dismissal. See supra Part I.B.2.

The Executive’s power to intervene and its power to dismiss permit it to exercise control over any qui tam action. These two powers trump the four restrictions on the Executive’s power that the panel majority finds impermissible. The majority argues that the FCA restricts the Executive’s powers: (1) “to remove a relator,” (2) “to initiate the action,” (3) to limit the “breadth of the relator’s suit,” and (4) to “adhere to the rules and policies of the Department of Justice.” See Riley, at *10. First, the Executive effectively has the power to remove a relator because the Executive may intervene and take control of prosecuting the action. 31 U.S.C. � 3730(c)(1). If the Executive intervenes, it “shall not be bound by an act” of the relator. 31 U.S.C. � 3730(c)(1). It may also effectively remove the relator by dismissing the action. Either way, the Executive has the power to remove the relator from any position of responsibility in the qui tam action.

Second, the Executive effectively retains the authority over the decision to initiate the action because it has the power to dismiss a qui tam proceeding. See supra Part I.C.2.

Third, the Executive effectively retains the authority to limit the breadth of the qui tam action by choosing to intervene and take control of prosecuting the action. Fourth, in a similar manner, the Executive may ensure that the prosecution follow the rules and policies of the Department of Justice by intervening and taking control of the litigation. The Executive’s right to intervene at any time gives it the authority to effectively exercise the greater powers than are given to the Executive over independent counsel prosecutions.

In more important respects, the FCA gives the Executive Branch significantly greater power over litigation than the independent counsel provisions in Morrison. The Executive Branch cannot dismiss an independent prosecution; it can dismiss an FCA qui tam action. The Executive cannot intervene and take the primary responsibility for an independent counsel prosecution; it can intervene in an FCA qui tam action. As recent independent counsel prosecutions of the Executive Branch have demonstrated, an independent counsel prosecution can severely burden the President’s time and energy. In contrast, FCA qui tam actions preserve Executive Branch resources by permitting privately funded prosecutions to recover money for the United States. Because these conflicts fairly create doubts, this Court should construe the statute on the side of constitutionality.

4. This case does not implicate the risk of tyranny by stripping one branch of its constitutional powers.

This case does not involve any risk of tyranny, which is the primary concern in separation of powers cases. There is no evidence that Nurse Riley’s action has impaired any power of the Executive Branch. Cf. Morrison, 487 U.S. at 654 (rejecting a separation of powers challenge by officials of the Attorney General’s office to the independent counsel’s authority to issue subpoenas). This case involves no interference with the performance of the President’s job. Cf. Clinton, 117 S. Ct. at 1645-50 (rejecting the argument that separation of powers prevents all civil suits against the President because they necessarily interfere with the President’s time and energy). It is difficult to conceive of any scenario by which the qui tam provisions of the FCA could somehow lead to governmental tyranny by aggrandizing or significantly impairing the powers of any branch of government. It is even more difficult to conceive how Nurse Riley’s qui tam action could risk any type of tyranny.

D. The FCA Qui Tam Provisions Reflect a Proper Exercise of Congress’s Property Clause Power.

The FCA qui tam provisions are also consistent with the separation of powers doctrine because they reflect a proper exercise of Congress’ constitutional power under the Property Clause in Article IV of the Constitution. U.S. Const. art. IV, � 3 cl. 2. The Property Clause gives Congress the “power to dispose of and make all needful Rules and Regulations respecting . . . Property belonging to the United States.” Id. Congress’s rights under the Property Clause are unique in that the Constitution expressly provides that “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States . . . .” Id. The Supreme Court repeatedly has held that Congress’s power to protect the property of the United States is “plenary,” Utah Div. of State Lands v. United States, 482 U.S. 193, 201 (1987); Ruddy v. Rossi, 248 U.S. 104, 106 (1918), and “subject to no limitations.” Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1871).

The qui tam provisions of the FCA are within this uniquely broad and unlimited power of Congress because they are Congress’s mechanism to prevent the loss of United States’ property by fraud. The FCA was originally enacted to “stop[] the massive frauds perpetrated [against the Union Army] by large contractors during the Civil War.” United States v. Bornstein, 423 U.S. 303, 309 (1976). It has been estimated that “perhaps ten percent of the Federal budget is being lost each year due to fraud against the taxpayers.” 134 Cong. Rec. S16, 705 (daily ed. Oct. 18, 1988) (statement of Sen. Grassley). Congress has recognized that “perhaps the most serious problem plaguing effective [fraud] enforcement is a lack of resources on the part of Federal enforcement agencies . . . .” S. Rep. No. 345, 99th Cong., 2d Sess. 7, reprinted in 1986 U.S.C.C.A.N. 5266. Through the FCA qui tam provisions, Congress enacted a means to recover federal property lost by fraud without requiring the expenditure of public funds.

Holding that FCA qui tam provisions violate the separation of powers is contrary to Article IV’s provision that “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States.” By invalidating private enforcement of FCA claims, this Court would effectively prejudice valid United States claims that federal prosecutors would not otherwise have the resources to pursue.

E. The Lengthy and Established History of Qui Tam Suits and Other Related Actions Weighs in Favor of Their Constitutionality.

1. Qui tam provisions have a lengthy and established history in Anglo-American jurisprudence.

As the panel’s dissent explains at length, qui tam actions have been recognized in hundreds of years of English precedent, were used extensively during the early years of the Republic, and have a long history of use since that time. See Riley, at *28-29 (Stewart, J., dissenting). The Supreme Court has recognized that “[s]tatutes providing for actions by a common informer, who himself has no interest in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our Government.” Marvin v. Trout, 199 U.S. 212, 225 (1905).

Not only has Congress adopted numerous qui tam statutes, but they also have been recognized by the Supreme Court. Not long after the Constitution was adopted, the Court held that statutes that provide a reward to an informer will be construed to authorize a qui tam suit by him even if that cause of action does not expressly appear in the statute. See United States ex rel. Marcus v. Hess, 317 U.S. at 537, 541 n.4 (1943) (citing Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805)). Additionally, one of the most celebrated landmarks of the Supreme Court’s jurisprudence — McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) — “was a qui tam action, brought to recover a penalty.” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 537 (1832). The panel dissent correctly questions the majority’s conclusion that qui tam provisions have not become part of the fabric of our society. See Riley, at *28-29 (Stewart, J., dissenting).

2. The long history of qui tam statutes weighs in favor of their constitutionality.

The panel majority argues that the history of qui tam mechanisms does not “insulate the FCA’s qui tam provisions from serious constitutional scrutiny.” See Riley, at *3. Although history may not be dispositive, the majority errs by failing to weigh the lengthy history of qui tam mechanisms in the determination of their constitutionality.

The panel majority improperly avoids the role of history in constitutional interpretation by narrowing history’s application to the specific factual circumstances of Marsh v. Chambers, 463 U.S. 783 (1983). For the history of a practice to have any constitutional significance, the panel majority would require that “evidence that the early Congresses considered the constitutionality of such actions” as well as a showing that the provisions have become “part of the fabric of our society.” Riley, at *3. This is far too narrow a view of the role of history in constitutional analysis. The Supreme Court recently recognized that “early congressional enactments provide contemporaneous and weighty evidence of the Constitution’s meaning.” Printz v. United States, 521 U.S. 898, 905 (1997) (internal quotations and brackets omitted). Moreover, “contemporaneous legislative exposition of the Constitution . . . acquiesced in for a long term of years, fixes the construction to be given to its provisions.” Id. (internal quotations omitted). The fact that the first Congress so extensively relied on qui tam mechanisms to protect federal funds and further regulatory policies “when the founders of our government and framers of our Constitution were actively participating in public affairs,” Knowlton v. Moore, 178 U.S. 41, 56 (1900), “goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327-328 (1936). History may not be determinative. But the Appellees must meet a heavy burden to demonstrate unconstitutionality before this court should overturn 200 years of legislative and legal practice.

This Court should weigh (1) the minimal effect on Executive Branch constitutional powers posed by qui tam statutes against (2) the long historical acceptance of qui tam statutes, (3) Congress’s proper exercise of its Article IV power, and (4) the great benefit of such statutes in protecting public funds. The combination of these factors overwhelmingly supports the constitutionality of the qui tam actions.

II. NURSE RILEY’S QUI TAM ACTION DOES NOT VIOLATE THE APPOINTMENTS CLAUSE.

The panel’s opinion insinuates that the qui tam provisions of the FCA also violate the Appointments Clause. U.S. Const. art. II, �2 cl. 2; see Riley, at *12. Like every other argument raised by Appellees, this argument has been rejected by every court that has considered it. (See Reply Brief of Appellant, pp. 7-10; Brief of United States, pp. 36-43; Reply Brief of United States, pp. 8-16). [FOOTNOTE 2] This suggestion is again made without any concern or review of the purposes behind the Appointments Clause and the precedent applying it. While there are slight distinctions, argued here, many principles, concerns, precedent and arguments greatly overlap with the separation of powers doctrine briefed in Part I, supra.

A. The Purpose of the Appointments Clause is to Prevent Aggrandizement of Appointment Power by One Branch at the Expense of Another.

The Appointments Clause is designed to limit congressional discretion to disperse the power to appoint government officers, and thereby preserve the structural integrity of the Constitution. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 878 (1991); Buckley v. Valeo, 424 U.S. 1, 120, 124 (1976). Both of these cases explicitly focus on the danger of one branch aggrandizing its power at the expense of another branch. Freytag, 501 U.S. at 878; Buckley, 424 U.S. at 129-131. While the separation of powers doctrine encompass broader concerns about the “impairment” of one branch’s duties, there is no authority or rationale to suggest that the concerns underlying the Appointments Clause can be anything other than the aggrandizement of power at the expense of another branch. See Mistretta v. United States, 488 U.S. 361, 382 (1989); Bowsher v. Synar, 478 U.S. 714, 733-34 (1986). This Court should rightfully ask — what aggrandizement, by one branch from another branch, occurs by permitting individual citizens to bring suits to enforce federal law?

This Court could certainly see, as the Supreme Court did, the aggrandizement concern raised about the independent counsel in Morrison, supra. The independent counsel enjoys sole responsibility for enforcing criminal law in the specified context of a defendant serving in the executive branch. The independent counsel is paid by the federal government on a non-contingent basis, may appoint new governmental employees, and may command the aid of other Department of Justice employees in executing her investigation and lawsuit. See Morrison, 108 S. Ct. at 2604. Nevertheless, these powers mean an independent counsel is no more than an “inferior officer” for Appointments Clause purposes, id. at 2608, because she serves in a one time situation. Id. at 2609 (the office is “‘temporary’ in the sense it . . . accomplish[es] a single task . . . .”). The Court, nevertheless, found the aggrandizement concerns of prior Appointments Clause precedent meritless — one branch was not improperly attempting to usurp the authority to appoint an officer for itself from another. Id. at 2611-12 (Under EGA, legislature gave independent prosecutor appointment authority to Special Division of D.C. Circuit).

B. The Appointments Clause May Be Invoked Only for Persons Qualifying as an “Officer of the United States.”

The proper focus for this Court, as demonstrated by the Supreme Court, is the extent, not the nature, of the person’s activities. See generally Buckley, 424 U.S. at 138-39. The Supreme Court has required a continuous employment with public duties to transform a person into an “officer of the United States.” See Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508, 511-12 (1878); United States v. Hartwell, 73 U.S. 385, 393 (1868). These opinions lead to the Court’s pronouncement that the distinguishing facts creating an “officer” are “duties, salary, and means of appointment for that [office] specified by statute,” as opposed to those who are hired “on a temporary, episodic basis, whose positions are not established by law and whose duties and functions are not delineated in a statute.” Freytag, 501 U.S. at 881; see also Morrison, 108 S. Ct. at 2609 (both cases citing Germaine, supra). Of course, qui tam relators are not hired at all — like Nurse Riley, they are citizens of their government, spending their own time and money on a one time action against fraud and for a bounty.

C. Nurse Riley’s Qui Tam Action Does Not Violate the Definition or Purpose of the Appointments Clause.

Citizens may litigate federal causes of action for the enforcement of federal law. See, e.g., Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987); Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 829 (5th Cir. 1997). [FOOTNOTE 3] No logic suggests that the same citizens convert themselves into government officers when their lawsuit is brought for the benefit of the United States Treasury. These citizen suits have been considered, time and again, without any Appointments Clause concerns. See generally Gwaltney, 484 U.S. at 60-62; TVA v. Hill, 437 U.S. 164 (1978). Nevertheless, Appellees contest the appropriate delegation of limited authority outlined by Justice Stewart, see Riley, at *33-36, and demand a detailed examination of the powers of a relator under the FCA to determine if they reach “officer” status. Under this Court’s own statutory constructions, this doubt must be resolved in favor of constitutionality. See Part I.B.2.b. supra.

This Court’s interpretation of the FCA’s qui tam mechanism in Foulds and in Searcy fundamentally conflicts with the argument that a qui tam relator may be deemed an “Officer” subject to the Appointment Clause. Foulds found that a state has immunity under the 11th Amendment in a qui tam action litigated solely by a relator. United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 294 n.12 (5th Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3138 (Aug. 23, 1999) (No. 99-32). This Court held that “qui tam plaintiffs cannot qualify as surrogates of ‘responsible federal officers’ who have the right to represent the sovereign to sue the respective states.” Id. at 293. This Court reasoned that the relator must solely finance the litigation and pay for all its costs, which “further confirm that a private citizen was funding the case and could not side step the 11th Amendment.” Id. The Court found that only “‘responsible federal officers’ or those who act at their instance and under their control,” could sue as the sovereign United States. Id. at 294. The basis for this Court’s conclusion is that a relator in not an “official of the United States.”

In Searcy, this Court upheld the preservation of rights by the United States throughout any FCA action because it is the government’s interest at stake. Searcy, 117 F.3d. at 157. Regardless of a relator’s effort to prosecute a case, enter a settlement, and dispose of an action “in the name of the United States,” the action was always subject to the Department of Justice’s review, intervention, appeal, or dismissal — its “veto power.” Id. at 157, 159. In combination with the variety of other procedural protections and limitations within the FCA, it is impossible to see how a qui tam relator, subject at all times to the Department of Justice, could qualify as an “officer of the United States” under the Supreme Court’s definitions.

It is equally impossible to identify the concerns and foundations of the Appointments Clause threatened or impaired by qui tam actions. The relator does not bring the manpower, resources, and authority of the United States to her FCA action — she only brings the name. See Foulds, 171 F.3d at 292-94. The relator does not assert a criminal violation or threaten a party’s private business dealings in the outside world of commerce — she only identifies fraud by those who would do business with the United States. The relator does less, under the controls retained by the Executive within the FCA, than another citizen may do in court under statutes providing a citizen cause of action. Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 1016, 140 L. Ed. 2d 210 (1998).

Meanwhile, the legislative history and Executive Branch argue to this Court that there is no impairment, much less aggrandizement, of power by another branch. This Court should rely on its own precedent and interpret the terms of the statute in a reasonable fashion to achieve a constitutional result in favor of Nurse Riley under the Appointments Clause.

III. NURSE RILEY’S QUI TAM ACTION DOES NOT VIOLATE”CASE OR CONTROVERSY” STANDING REQUIREMENTS.

Just as this Court should look at the underlying principles of the separation of powers doctrine and Appointments Clause in its review of Nurse Riley’s qui tam action and the panel’s majority opinion, this Court should also review the underlying principles of the “case and controversy” standing doctrine in its review of Nurse Riley’s action and the invitation by Justice DeMoss to declare FCA cases unconstitutional under Article III. As detailed in prior briefing, and incorporated herein, this Court has explicitly held that a qui tam relator has standing to sue under Article III. See United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 459-61 (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978); Foulds, supra. These holdings conform with every existing precedent on this issue, and create more than just a “precedent argument” that can be disobeyed under any theory of stare decisis.

A. The Purpose of the “Case or Controversy” Standing Requirement is to Abide by the Historical Business of the Courts.

According to the Supreme Court, “Article III, � 2 of the Constitution extends ‘judicial power’ of the United States only to ‘cases’ and ‘controversies.’ We have always taken this to mean cases and controversies of the sort traditionally amenable to and resolved by the judicial process.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 1016, 140 L. Ed. 2d 210 (1998) (quoting Muskrat v. United States, 219 U.S. 346, 356-57, 31 S. Ct., 250, 253-54, 55 L. Ed. 246 (1911)). The Supreme Court has made clear, contrary to Justice DeMoss’ concurrence and Judge Hoyt’s opinion, that the “case or controversy” standing doctrine is not a “modern” invention that can be viewed as having undergone a fundamental change that abandons history and overrules precedent:

Although we have packaged the requirements of constitutional “case” or “controversy” somewhat differently in the past 25 years — an era rich in three-part tests — the point has always been the same: whether a plaintiff “personally would benefit in a tangible way from the Court’s intervention.” Warth [v. Seldin], 422 U.S. 490, 508, 95 S. Ct. 2197, 2210, 45 L. Ed. 2d 343 (1975).