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THE PERDUE LAW FIRM, L.L.P. Jim M. Perdue Texas Bar No. 15774000 Jim M. Perdue, Jr. Texas Bar No. 00788180 2727 Allen Parkway, Suite 800 Houston, Texas 77019 Telephone : 713.520.2500 Telecopier : 713.520.2525 ATTORNEYS FOR APPELLANT JOYCE RILEY [The table of contents and table of authorities have been deleted.]
Pursuant to this Court’s order granting en banc review, Appellant, Relator Nurse Joyce Riley has filed for the entire Court her initial Appellant’s Brief, Record Excerpts, and Reply Brief of Appellant. Nurse Riley incorporates this prior briefing and the arguments and authorities included therein for all purposes of this Court’s rehearing en banc.
If this Court is to reach a holding that overturns history and precedent, it should at least have a principled rationale “why.” The underlying purposes of each doctrine invoked by Appellees do not support the panel’s result. This Court should look to the purpose upon which each argument’s doctrine is founded. When it does, there exists no reasoned Constitutional concern to invalidate the qui tam procedure under the False Claims Act (31 U.S.C. � 3729 et seq., hereafter the “FCA”). The separation of powers doctrine is a means to prevent tyranny by limiting government. The Founders crafted a governmental architecture designed to promote liberty by preventing the aggrandizement of power by one branch over another. The doctrine also assures a branch will not be impaired in its core function by another branch, thus weakening its ability to combat centralization of power. The doctrine recognizes, however, that no absolute rule creates concrete walls between the branches of government, much less between the branches and the citizenry. Qui tam actions are not a harbinger of tyranny. They do not impair one branch of government or benefit the power of another. Although the panel opinion identifies hypothetical infringements on prosecutorial discretion, no such infringement has been identified in this case. In fact, the Executive actually supports Nurse Riley’s right to pursue this action, and denies that its constitutional authority has been impaired. The FCA permits broad executive discretion over all phases of qui tam litigation — from intervention, through discovery, to settlement and dismissal. To the extent it has constitutional concerns about any limits on Executive Branch power, this Court can and should interpret the FCA in favor of executive primacy and in support of constitutionality. This Court should also recognize a presumption in favor of the constitutionality of the qui tam mechanism because it has been repeatedly approved by legislatures, the Executive, and courts since the founding of the Republic. The Appointments Clause is a sharper instrument to protect separation of powers doctrine and to prevent the aggrandizement of power by one branch. The clause, and its concerns, applies only to persons qualified as “Officers of the United States.” Qui tam actions under the FCA do not invoke the Appointments Clause. There is no appointment power aggrandized in suits brought by a relator, neither by a branch nor against a branch. Relators under the FCA are self-funded individuals in a one time cause, bringing neither the money, manpower nor force of the United States, but only its shared interest. Under this Court’s own holdings, qui tam relators cannot qualify as a government “officer” for Appointments Clause purposes. The “case or controversy” standing doctrine is designed to ensure that courts remain limited to the historical business of courts. The assurance that courts did not engage in “debating societies,” “advisory opinions,” or uniquely political disputes is grounded in historical standing precedent. These particular judicial concerns are, again, fashioned from the principle of separation of powers. These concerns are not raised by Nurse Riley’s qui tam action — she brings this action for a particular harm that has historically been redressed by courts. The “modern” standing precedent of the Supreme Court returns the “case or controversy” requirement to its historical roots. The “modern” cases support inquiry into historical practice and mandate a principled application of the purpose of separate judicial power. Thus, “modern” standing law eradicates novel efforts to force “generalized grievances” on the courts; it does not overturn the historical practice of courts adjudging redressable claims brought on behalf of the government.
I. NURSE RILEY’S QUI TAM ACTION DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE. A. Nurse Riley’s Qui Tam Action Does Not Implicate the Fundamental Concerns of the Separation of Powers Doctrine. 1. The separation of powers doctrine should be applied in light of its purposes. The majority opinion calls for a sweeping invalidation of FCA qui tam actions in which the Government does not intervene. This result would be remarkable in a number of respects. First, it would greatly extend the scope of the Article II Take Care Clause and the separation of powers doctrine. See infra Part I.C.1-3. Second, it would depart from the holding of every other reported decision on this issue. See infra Part I.C.1. Third, it would find that the qui tam statute unconstitutionally limits the Executive Branch’s power in a case where the relator has not sought to limit any power of the Executive Branch and where the Executive has actually supported the constitutionality of this action. See infra Part I.B. Fourth, it would invalidate a qui tam procedure that has deep historical roots dating beyond the origins of the Republic. See infra Part I.E. Even more remarkable is the fact that the majority opinion makes such an unprecedented extension of the separation of powers doctrine without addressing the underlying purposes of that doctrine. On rehearing, the Court should analyze the constitutionality of this qui tam action in light of the purposes behind the separation of powers doctrine. 2. The primary purpose of the separation of powers doctrine is to prevent tyranny and the aggrandizement of power by one branch of government at the expense of another. The primary concern of the separation of powers doctrine is to prevent tyranny by the accumulation of power in one branch of government. “[S]eparation of powers was adopted in the Constitution ‘not to promote efficiency but to preclude the exercise of arbitrary power.’” Bartkus v. Illinois, 359 U.S. 121, 137 (1959) (quoting Myers v. United States, 272 U.S. 52 (1926) (Brandeis, J., dissenting)). As James Madison explained, “[t]he accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny . . . .” The Federalist No. 47, at 301(Clinton Rossiter ed., 1961). In the majority of separation of powers cases, the courts’ primary concern is preventing aggrandizement by one of the three branches of government at the expense of another branch. The separation of powers is “a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Clinton v. Jones, 117 S. Ct. 1636, 1647 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976)). The Supreme Court has explained that “[i]t is this concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence and aroused our vigilance against the hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power.’” Mistretta v. United States, 488 U.S. 361, 382 (1989) ( quoting INS v. Chadha, 462 U.S. 919, 951 (1983)). Consequently, most Supreme Court decisions finding a violation of the separation of powers involve an aggrandizement of the power of one branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225-26 (1995) (Congress may not revise judicial determinations by retroactive legislation reopening judgments); Bowsher v. Synar, 478 U.S. 714, 726 (1986) (Congress may not remove Executive Branch officers except by impeachment); INS v. Chadha, 462 U.S. 919, 954-55 (1983) (Congress may not enact laws without bicameral passage and presentment of the bill to the President). 3. This case does not concern the aggrandizement of power in one branch of government. Unlike the majority of cases where a violation of the separation of powers doctrine has been found, this case does not involve any aggrandizement of a branch of government. By enacting the qui tam provisions of the FCA, Congress did not increase its own power at the expense of the Executive Branch. See Morrison v. Olson, 487 U.S. 654, 694 (1988). As in Morrison, “Congress retained for itself no powers of control or supervision over” qui tam relators. See id.; 31 U.S.C. � 3730. Congress does not appoint individual qui tam plaintiffs. See 31 U.S.C. � 3730. It has no role in the prosecution of a qui tam claim. See id. The absence of any aggrandizement by Congress may not end the separation of powers inquiry. It does, however, reveal the presumption of the constitutionality of the qui tam mechanism. The panel majority has not cited any Supreme Court case that has declared an act by one branch unconstitutional where there is no aggrandizement of another branch’s power. The primary purpose of the separation of powers doctrine — the prevention of tyranny — is not implicated to the same degree when the statute does not aggrandize, but merely limits, governmental power. 4. Although the separation of powers doctrine may prohibit undue interference with a branch’s constitutional powers, it does not prohibit all interference. Although tyranny through the aggrandizement of a branch of government is the primary concern of separation of powers jurisprudence, the Supreme Court also has recognized that “[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” Clinton, 117 S. Ct. at 1648 (quoting Loving v. United States, 116 S. Ct. 1737, 1743 (1996)). Because most Supreme Court cases regarding separation of powers doctrine concern the risk of aggrandizement, the Supreme Court has not clearly defined how severe an interference with one branch’s powers must be to violate the separation of powers doctrine where there is no aggrandizement. In most cases where there is no aggrandizement, but only an interference with one branch’s powers, the Court has found no violation of the separation of powers. See, e.g., Loving v. United States, 517 U.S. 748 (1996) (Congress may delegate its constitutional authority to define aggravating factors that permit the imposition of death penalty in military capital cases); Clinton, 117 S. Ct. at 1648-49 (civil suit against president while in office does not violate separation of powers by impairing “the Executive’s ability to perform its constitutionally mandated functions”); Morrison, 487 U.S. at 693-96 (1988) (independent counsel provision does not violate “the principle of separation of powers by unduly interfering with the role of the Executive Branch” (emphasis added)). By holding that this qui tam action violates the separation of powers, even though no branch of government is aggrandized, the panel majority sails in unchartered waters. The Supreme Court has recognized that the separation of powers is not, and cannot be, absolute. The Court has “never held that the Constitution requires that the three branches of Government operate with absolute independence.” Morrison, 487 U.S. at 693-94. Instead, the Court has “squarely rejected the argument that the Constitution contemplates a complete division of authority between the three branches.” Nixon v. Administrator of General Serv., 433 U.S. 425, 443 (1977) (describing the holding of United States v. Nixon, 418 U.S. 683, 703 (1974)). The separation of powers “‘d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other.’” Mistretta, 488 U.S. at 380-81 (quoting The Federalist No. 45, at 325-25 (emphasis deleted)). Rather, our “system imposes on the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence, the absence of which ‘would preclude the establishment of a Nation capable of governing itself effectively.’” Mistretta, 488 U.S. at 381 (quoting Buckley, 424 U.S. at 121). “Separation-of-powers principles are vindicated, not disserved, by measured cooperation between the two political branches of the Government, each contributing to a lawful objective through its own processes.” Loving, 517 U.S. at 773. 5. The panel majority improperly adopts a bright-line test of constitutionality instead of balancing constitutional interests. The standard for determining whether the separation of powers has been violated is not whether “airtight departments of government” are maintained. Nixon, 433 U.S. at 443. Rather, when an interference with the Executive Branch’s power is concerned, the constitutional issue is as follows:
In determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.

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).

Steel Co., 118 S. Ct. at 1016 n.5. The “point” Justice Scalia was making in Steel Company has been the same throughout Article III history. For example, in 1885, the Supreme Court dismissed a claim for relief that had no redressable injury. See Marye v. Parsons, 114 U.S. 325, 328-30 (1885) (case remanded with directions to dismiss because the “bill as framed . . . calls for a declaration of an abstract character.”). History bears out the pronouncement in Steel Company that the Supreme Court has always taken Article III to mean “cases of the sort traditionally amenable to and resolved by the judicial process.” See, e.g., Fairchild v. Hughes, 258 U.S. 126, 129-30 (1922) (citizen action challenging process of ratification of the Nineteenth Amendment was “not a case within the meaning of . . . Article III . . .”); Massachusetts v. Melon, 262 U.S. 447, 489 (1923) (taxpayer suit asks “not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess [under Article II]“); Warth v. Seldin, 422 U.S. 490, 498 (1975) (Article III standing requirements assure “the proper — and properly limited — rule of the courts in a Democratic society.”). These historical precedent construct the foundation of Article III interpretation. This precedent should then guide an interpretation of what (1) the framers understood Article III to embody and (2) their effort that the third branch of government would consider only “cases of a judiciary nature.” The records of the federal convention of 1787, at 430 (Max Farrand Ed., 1911) (August 27, 1787). Thus, the case or controversy requirement should be used to assure that courts consider “what was generally speaking the business of the Colonial Courts and the Courts of Westminister when the Constitution was framed.” Joint Anti-fascists Refugee Comm’n v. Magrath, 341 U.S. 123, 150 (1951) (Frankfurter, J., concurring). B. Qui Tam Actions are Historically Business of the Courts. This Court must look to the historical acceptance of qui tam actions and their presence as a traditional form of litigation in the Anglo-American common-law to determine if they were, indeed the “business of the Colonial Courts” when the Constitution was framed. Neither Judge Hoyt nor Justice DeMoss disputes the fact that the First Congress enacted eleven qui tam statutes. See Act of Mar. 1, 1790, ch. 2, � 3, 1 Stat. 101, 102 (marshall’s improper action with census); Act of July 5, 1790, ch. 25, � 1, 1 Stat. 129 (same); Act of July 30, 1790, ch. 29, � 4, 1 Stat., 131, 133 (harboring runaway mariners); Act of July 22, 1790, ch. 33, � 3, 1 Stat. 137, 137-38 (unlicensed Indian trade); Act of Feb. 25, 1791, ch. 10, �� 8, 9, 1 Stat. 191, 195-96 (unlawful loans by subscribers to Bank of The United States); Act of Mar. 3, 1791, ch. 15, � 44, 1 Stat. 191, 209 (avoidance of liquor duties); Act of July 31, 1789, ch. 5, � 29, 1 Stat. 29, 44-45 (import duty collectors’ failure to post accurate rates); Act of Aug. 4, 1790, ch. 35, � 55, 1 Stat. 145, 173 (same); Act of Sept. 1, 1789, ch. 11, � 21, 1 Stat. 55, 60 (failure to properly register vessels); Act of July 20, 1790, ch. 29, � 1, 1 Stat. 131, 131 (failure of commander to contract with mariners); Act of May 31, 1790, ch. 15, � 2, 1 Stat. 124, 124-25 (copyright infringement) [FOOTNOTE 4]; See Riley, at * 28-29 (Stewart, J., dissenting). Nurse Riley is unaware of any time in the nation’s history, from 1789 to today, where qui tam enforcement under at least one extant federal statute has not been authorized. Nor is there any evidence that the founding fathers considered qui tam actions to be inapposite with the doctrine of separation of powers or the “case or controversy” standing requirement. See Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 175-76 (1992). [FOOTNOTE 5] With this historical foundation, this Court may then find comfort from the fact that the Supreme Court has had no jurisdictional concerns with qui tam cases. See The Laura, 114 U.S. 411, 416 (1885); Marvin v. Trout, 199 U.S. 212, 225-26 (1905); United States ex rel. Marcus v. Hess, 317 U.S. 537, 539-40 (1943); Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997). The Supreme Court has used the absence of congressional legislative enactments in particular forms to find that such statutes were constitutionally impermissible. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 230 (1995); Printz v. United States, 521 U.S. 898, 907-08 (1997). It should only make sense for this Court that the uninterrupted existence of statutes of a particular form validates such statutes as constitutionally permissible. See Alden v. Maine, 119 S. Ct., 2240, 2261 (1999) (early congressional practice “provides ‘contemporaneous and weighty evidence of the Constitution’s meaning.’” (citation omitted)); Myers v. United States, 272 U.S. 52, 175 (1926) (“contemporaneous legislative exposition of the Constitution . . ., acquiesced in for [many] years, fixes the construction to be given it’s provisions.”). These recent cases provide a meaningful context with which to view the “modern” standing cases — Steel Co. and Lujan. C. “Modern” Standing Doctrine Assures Courts are Limited to Their Historical Business. The modern tripartite test should be viewed as a novel way to explain and vindicate the historical bases of standing — that “the province of the Court is, solely, to decide on the rights of individuals.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L. Ed. 60 (1803)). Thus, the Lujan Court had a historical foundation, and a constitutional purpose, to reject novel congressional efforts at converting “a generally available grievance about government” into an actionable case under Article III. Lujan, 504 U.S. at 573. Nevertheless, the Court contemporaneously distinguished that improper congressional effort with the permissible and “unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government’s benefit, by providing a cash bounty for the victorious plaintiff.” Id. The fact that Lujan is based in the historical restriction of Article III Courts to the “proper judicial business of Courts” is further confirmed by the very limitations the Supreme Court set out in its conclusory paragraph:

Nothing in this contradicts the principle that “[t]he . . . injury required by Article III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’” Warth, 422 U.S. at 500 (citation omitted). . . . Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the government, at least, the concrete injury requirement must remain.

Lujan, 504 U.S. at 578 (emphasis added). Justice Kennedy’s and Justice Souter’s concurrence in Lujan provide further guidance to “modern” standing doctrine. These justices remind us that Congress is empowered to create a novel “case or controversy” as long as it “identif[ies] the injury it seeks to vindicate and relate[s] the injury to the class of persons entitled to bring suit.” Lujan, 504 U.S. at 580 (Kennedy, J., joined by Souter, J., concurring in part while concurring in judgment). Steel Company further confirms that the case or controversy requirement is not a novel standing doctrine invented in the 1990′s, but one based in history to serve the purpose of limiting the Federal Court’s consideration of cases “historically the business of the Courts.” There, the Court found that a citizen suit under the EPCRA could not satisfy the tripartite test set out in Lujan because there was no redressability of the alleged injury. Steel Co., 118 S. Ct. at 1019 (“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into Federal Court . . . .”). The citizen suit provision of the EPCRA allowed a person to “commence on his own behalf” an action against an operator for failure to comply with reporting requirements to the Environmental Protection Agency. 42 U.S.C. � 11046(a)(1) (emphasis added). The plaintiff alleged a variety of injuries, including a claim for civil penalties under the statute. Steel Co., 118 S. Ct. at 1018. The Court found that the penalties, “the only damages authorized by the EPCRA,” were payable to the United States Treasury. Id. These damages “might be viewed as a sort of compensation redress to respondent if they were payable to respondent. But they are not.” Id. Thus, the statute (which limited a citizen to bring suit only in her own name and did not provide for any damages payable to her) could not confer a redressable injury. Id. The dissent, in one of the few portions unrebutted by the majority, pointed out that “under the Court’s own reasoning, respondent would have had standing if Congress had authorized some payment to respondent.” Steel Co., 118 S. Ct. at 1030 (Stevens, J., dissenting). Therefore, a qui tam relator, who receives a bounty under the statute, would also have a redressable claim, and standing. Id. Thus, “modern” standing doctrine should be understood to actuate, not displace, the historical understandings and precedent of Article III. The Supreme Court has returned to the historical separation of powers roots of standing law, in the self-admitted effort to address modern environmental enforcement schemes and the birth of public interest law. Justice Scalia has crafted these “modern” opinions, responding to the explosion of citizen’s suits, by returning the standing doctrine to its historical fundamentals, as they existed from the inception of the Constitution up to the expansive judicial activity borne by the Administrative Procedure Act. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suff. U. L. Rev. 881, 889 (1983). A historical pedigree, therefore, supports the “modern” doctrine which, in turn, provides a means to deny a litigant’s standing where it has always been denied: (1) a case presents “abstract questions of wide public significance which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches;” (2) plaintiff rests his claim “on the legal rights or interests of third parties” rather than on his own; or (3) a case fails to present a claim “within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982). Qui tam actions under the FCA simply do not fit within any of the categories the Court has recognized Article III standing should be denied. This truism persuades not because qui tam statutes have existed throughout the history of the United States, but, rather, because the courts of the United States have heard qui tam actions throughout history–without any threat to the principles of separation of powers or a limited judicial branch. Qui tam actions, in history and today, assure that the courts are addressing a particularized dispute between real parties with real interests redressable in the action itself. See Cass R. Sunstein, supra, at 175-76. D. “Modern” Qui Tam Actions Under the FCA Remain Business of the Courts. There is no common law analogue for modern citizen suits and their generalized grievances in a bureaucratic state. Likewise, there is no power to imbue a modern citizen suit alleging a generalized grievance with Article III standing. There was, however, a common law utilization of qui tam mechanisms throughout the history of the courts that help define them as “cases of a judiciary nature.” See Trout, 199 U.S. at 225 (Supra at Part I.E.1.). In an earlier discussion of the qui tam procedure, the Supreme Court found:

The construction placed upon the Constitution by the First Act of 1790 . . . by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is, of itself, entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is conclusive.

The Laura, 114 U.S. at 416 (Citation omitted). And, when it addressed the congressional propriety of delegating authority to a qui tam relator, the Supreme Court found that “Congress has power to choose this method [of qui tam enforcement] to protect the government from burdens fraudulently imposed upon it.” Hess, 317 U.S. at 542. The Supreme Court has assured “in reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the judiciary.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 852 (1986). The concurrence fails to weigh or consider any factors in support of the FCA, especially the injury to the real party in interest, and offers no explanation how a court’s hearing of a qui tam action violates the Constitution’s envisioned role of the judiciary. This conclusion neither “weighs all factors” or keeps “an eye on [its] practical effect.” Regardless of this fact, Appellees ask this Court to “[f]orget how we got here” and embrace a new dogma of standing that vacates any action brought for another real party in interest because it fails to satisfy a myopic view of “injury in fact.” Just as the plain text of Article III cannot be read without the context of history and surrounding precedent, the modern precedent provides further context to a qui tam relator’s standing. Justice DeMoss suggests that this Court take nothing from its Foulds opinion, which recognized the Supreme Court’s denial of certiorari of an Article III standing challenge to the False Claims Act. See Foulds, supra, at n.12; Hughes Aircraft Co. v. United States ex rel. Schumer, 519 U.S. 926 (1996). After denying certiorari on standing (which had been addressed by the Ninth Circuit and briefed to the Court), the Supreme Court issued its opinion on the statutory merits of the False Claims Act. Hughes Aircraft Co. v. United States ex rel. Schumer, 117 S. Ct. 1871, 1877 (1997). Just three months earlier, a unanimous court refused to consider the substantive merits of a case because standing did not exist. Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1071 (1997) (“Every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a case under review, even though the parties are prepared to concede it. (Citations omitted)”). Less than a year later, the Court issued Steel Company, which prohibited a review of the statutory merits before a finding of Article III standing. Steel Co., 118 S. Ct. at 1016 (“For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has not jurisdiction to do so is, by very definition, for a court to act ultra vires.”). The approach of this Court’s decision in Foulds, accepting existing precedent as authority, should persuade and guide this Court. Beyond that precedent, the principles of the “case or controversy” standing requirement are not insulted by Nurse Riley’s FCA action. Lastly, the historical guidance provided by over 200 years of court business may not yet be offended by Appellees, but it is certainly tempted to roll over in its apparently deep grave and ask — “Why, now, has the law changed?” Nevertheless, further guidance is forthcoming from the United States Supreme Court. The Court has directed the parties in a pending action to brief “Does a private person have standing under Article III to litigate claims of fraud upon the government?” Vermont Agency of Natural Resources v. United States ex rel. Stevens, No. 98-1828, 1999 WL 1045146 (Nov. 19, 1999). This Court should not accept Appellees’ invitation to ignore history, principle, and the past (or future) pronouncements of the Supreme Court.

Just as The Alchemist’s philosopher’s stone was incapable of turning all Mammon’s possessions into gold, this Court cannot turn 200 years of legal precedent into a rule of law that ignores fraud against the United States government. Ignoring history, Appellees play the role of Ben Johnson’s Subtle and scheme that well established jurisprudence can be magically transformed, so that a fraud feasor’s gains are no longer tainted plunder but become cherished gold safe from any citizen action. Unlike Mammon, this Court should look closely before it buys. For all the above reasons, Appellant, Joyce Riley, respectfully prays that this Court vacate the Court’s panel’s majority opinion, reverse the opinion of the district court, reject all alternative bases offered by Appellees, find that Nurse Riley has stated a cognizable claim for relief against all Appellees, and remand this case to the district court for full proceedings and trial, in the interests of justice. Respectfully submitted, THE PERDUE LAW FIRM, L.L.P. Jim M. Perdue Texas Bar No. 15774000 Jim M. Perdue, Jr. Texas Bar No. 00788180 2727 Allen Parkway, Suite 800 Houston, Texas 77019 Telephone : 713.520.2500 Telecopier : 713.520.2525 ::::FOOTNOTES:::: FN1 In fact, this Court has found that, in practice, there is, nor should be, any hurdle at all for the government. See Searcy v. Philips Elec. N. Am. Corp., 117 F.3d 154 (5th Cir. 1997). FN2 Given the moving target Appellant has faced, and this Court’s command to address “all issues” raised by the panel’s opinion, Nurse Riley incorporates her prior briefing on this issue and will elaborate here. FN3 In dissent, Justice Barksdale founded his standing concerns on the purposes of the “case or controversy” requirement, not the least of which is ensuring that the party “has a stake in the outcome.” Chevron, 129 F.3d at 830 (Barksdale, J. dissenting). Justice Barksdale’s further concerns — (1) frivolous actions, (2) unreasonable refusals to settle, and (3) proscribed advisory opinions [Id.], are obviated by the FCA controls — (1) losing plaintiff pays defendants’ fees and expenses under 28 U.S.C. � 2412(d) [18 U.S.C. � 3730(g)], (2) government must consent to any settlement [18 U.S.C. � 3730(b)(1), Searcy, supra] and may force a reasonable settlement [18 U.S.C. � 3730 (c)(2)(B)], and (3) there is no remedy for anything other than money damages [18 U.S.C. � 3729(a)]. The FCA’s mechanisms likewise satisfy, or do not even implicate, the purposes grounding Appointments Clause precedent. FN4 This final act is the only qui tam statute enacted by the First Congress that limited the right to sue to personally aggrieved individuals. FN5 There were no contemporaneous jurisdictional concerns for qui tam suits when considered by Article III Courts, inter alia, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

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