your urging it seems to me on the one hand you're reaching us to decide the constitutional question in this context because there are cases and still for but then at least like on page sixteen we say this elsewhere to you suggest that there's been no problem with our intervention here army government we didn't seek to intervene so it's and you say we assume for present purposes that the absence of such authority to intervene would present additional constitutional considerations in other words those questions are presented this case so i little i see some tension between the opposition to want to decide the constitutionality even in the absence of some requests by the government to intervene and if so do you think effect i think it does make a difference you know at some point quote this court in this case or another case is going to be faced with the question of whether this case should be remanded to allow the relator to proceed when one is taking the position that the case should be affirmed on the grounds that it's unconstitutional we what we've said is the statute to me too on its face really doesn't talk about the government at all it doesn't give the government any particular authorities with respect to the two ninety two b case but it doesn't prohibit the governor who can do anything you can say well that's your position i would have thought you would say that the extent that there's a constitutional problem here we should construe the statute to give the government some with our well we have not explicitly taken that position in large part because there's a history of quintana statute separate apartment to ninety two b history in this country that includes many statutes similar to two ninety two b which provides a prohibition and the right of or later to go forward and our view is that if that long history some of the statutes being adopted by the very first congress with the the leaving the government out of it completely would render the statute unconstitutional i mean should we under those circumstances construe the statute to provide for some government involvement that would render it constitute i don't disagree with that i think  initial question is whether in fact it was statute can you know on its face which does not talk about intervention by the government although it's clear in his rulings has provided that the government does have the right to intervene and i think it's perfectly appropriate court to consider  as to whether if the government brings a criminal proceeding to collect the penalty whether a private individual can bring a civil proceeding at the same time that is your position that the government's bringing in the proceeding would  the well it's not quite the same penalty because under additional statute congress has increased the quote criminal penalty for individuals who are convicted of infractions so in fact it bumps up a penalty in the criminal it's not over with so i'm not suggesting that the government might not come into the court come into the civil proceeding and attempt to exercise what it often doesn't civil proceedings when they're ongoing criminal proceeding to say yes the court this should be state so it doesn't interfere with the criminal prosecution but as an absolute matter of the rollator can actually bring a case either at the same time or certainly after the criminal case is over our position would be that in fact the relator could do that so getting back to my it would render the st unconstitutional unconstitutional on the grounds of what double jeopardy know on the ground that the government doesn't have control that's required by the take care it doesn't have control over the related proceeding well doesn't have of the statute that that might give the government greater control and disabled by doing it no i'm not i'm not opposed to that i think in the first instance we are defending only granted on its face with it with trust provides the weight of proceeding says nothing about government control of the statute can be sustained on that basis and if you get into more see in some of the cases the separation of powers cases that suggest the analysis that you're talking about looking at the government's control i would suggest this is a very different case that the fundamental distinction is all those cases morris in the strata of public accounting oversight board room work a relatively novel restructuring of the government there's no question that the independent coun part of the government that's not true of the relator is considered a private individual not part of the government we said goodbye of what you seem to be suggesting is that in the keith and i understand there's a difference between the two but what you seem to be suggesting in the keep pm context is that you can have a situation which the government has absolutely no say over the no right to intervene no right to bring the first proceeding and that it's perfectly ok constitutional question so then obviously what are the courts to say the constitutionality and look at the controls that the government does have as we have pointed out your brief with regard to the right to intervene the right to object to a settlement once the government has intervened between what about when strolling section two ninety provide some meaningful notice about what the proceeding is about so that the government in the form of the p p l which is part of the executive branch gets notice that this is a false claims ac right and it has been rejected i'm not sure i understand how we could do that that we would leave the door open here and say we don't have to decide the intervention question because there's no we there was no we plaster tonight here so we're going to say it always has to particularly get its way when they asked the court for a particular result i mean there are lots of laws that congress has given that you know the congress has passed lead into question here i'm certain that's not the question the question is whether the statute should be construed to provide some sort of ability of the government to participate and to control the action and we have to look at that even though this isn't a case in which the government sought to intervene we have to look at the statute this is the whether it's constitutional or one based on the history and based on the fact that the relator in is not part of the government and we will think that is initially the correct analysis for this court to me to be very very hard to  analyze this case and to analyze the extent to which morrison is relevant to this case without considering the government's the need for the government to have the opportunity to intervene dissipate or exercise some control it's parsing this issue out the very point that judge roast is making seems to me to be very very difficult for us so again  national argument is the court doesn't need to do that we have argued that in fact under you know it was a need to look at controls that in fact there are sufficient control what are the controls of the controls or the federal rules do provide because the government has to pass the court for certain relief doesn't in itself violate the take care of us the house and it's has the governments was to find out about the case if the notice under two ninety doesn't require the parent of be told that it's the polls and work and well it doesn't require to tell the full patent office that it's patent case and then you know under the current situation the way the law is the government person would have to devote enough resources to essentially figure out it's a false statute we talked of history let me share a little bit of personal history individual history if you will as noted on page seven of our preferred to the extent that my client has been involved in these actions and has settled three we have provided participating in a notice to allow for satellites to be reviewed and approved by their office briefly in connection with a separate issue maybe not as important but on nine b there is a request that you also sustain on line b grounds as i look at indicate that anyone would know but at least they would know and there are two other factors beyond that i think we've got knowledge there for mr potations and the inference of intent but we have a public record showing members involved it in a number of i let's hear from the other side and let's see mr dooley you argue first yes when in may please the court with the court's permission mr baker will address the court's questions regarding the government's right or lack of right to intervene as well as the appointments cause issue turning judge to if you're concerned about construction of statutes we have a situation here that i believe is unusual and that  preserve the constitutionality of two ninety two b and really i don't know how we could do that with tonight given notice provision there because section two ninety has notice of all patent cases going to the commissioner and it also has a one month example have to be written into the walls marking statute itself i don't necessarily think it has to be in the statute itself it's just that the longstanding doctrine of construing a statute to preserve its constitutionality which was at issue in a lot of the false claims act cases that that doesn't apply here because we can't look to two ninety or or rules of civil procedure so we can maybe we can look to them as being relevant to how this how to ninety two the operates but we don't essential to the constitutionality that stance or if we find that right to intervene in the federal rules of civil procedure that's ok it doesn't have to be all it's more extensive i think i would agree with that but with the provision that we don't bend over backwards with these other rules and statutes of general application i mean it could be that there are some set of statutes that provide for all sorts of control mechanisms for all content statutes and i think i would agree that we could look to that other secretary scheme to provide the kind of controls necessary to preserve constitutionality here but the problem we have here is none of the rules that are mentioned here provide anything like that level of control as the court knows it all the regional circuits  district courts in other circuits that address the take care cost challenges i had to really bend over backwards to preserve the constitutionality the false claims act they had to make sure that the government had a right to dismiss a false claims case they had can seem to prove saw all sorts of other concerns about the constitutionality of the f c a here we just don't have anything like that we even if a government could intervene what can it really do merit and should be dismissed but it would have no more power over the court than any miki that might show up to to to make that same coin and i did again i don't see how we could construe a rule twenty four and say well we're going to construe that twenty four to provide the government with something beyond what that will provide it's just a drooler general application so again intervention is just the beginning of the problem here we have the notice problem we have the fact that the government has no stated i don't know that so there would be any way for the court to construe that because to be is so open ended in permissive it just says any person may sue for the penalty and so there's nothing in a or b that would seem to give the court anything to watch a hol just subsection a i can't think of what that would be but again even if the government can intervene and we and mr mr becker will certainly address that point i see you still have enormous control problems here for i believe that just as a practical matter i suggest that control of ongoing litigation by the government is not constitutional necessity even in the context like morse i don't know but i think when you can put it all together in morrison you know you had the under the bill discretion of the not to appoint you cases appear and disappear before the government is even aware of them and then of course it's common that somebody will file a claim based on one patent and then the settlement agreement will end up being broader than the original case so there's really no notice mechanism here so thats it we nonstarter right there that the government can't even find out about these cases often so i don't think it's simply a matter of the government being able to dismiss i think it's also the government has to have some level of control maybe not complete control but some level of control over the initiation of the suit the prosecution of the suit and the terminations the suit but of course it's got to have notes and i don't see any way that you could possibly possibly construe to ninety to provide that kind of notice because there's nothing there about false marking into ninety and there's a very important one to lay there and it just all get to the practical matters of cited in the brief so in so many of these cases no notice was ever given no notice was given in this case this is no hypothetical question in this case no two nineteen notice was filed and i had other examples of that in the brief as well but they didn't go with our case so the i don't think there's any way to preserve th have a difficult argument since the government does have an interest in the outcome because they share in the recovery so why wouldn't you have a right to be the question your honor is whether it's a cognize a bill interest statute and the statute says that only a person can bring an action under section two ninety two be the supreme court in vermont agency case said that there's a presumption of statutory construction that a person is not a solvent so the united states is a sovereign is not a person and therefore cannot intervene that was to ask you about that when i'm saying let's assume you're right that the government if it wants to proceed has to proceed criminally that proceed simply understood subsection b but it still has an interest in the recovery what he said is that under the federal that's correct but the government here has an interest in a recovery that only the related or may seek only the relate or can bring a complaint under section two ninety two b and if the relate to recover half of that claim receives in a worse than half of that is owed to the government the government c then recover that but the government cannot assert a complaint in the section two hundred to be action because it's not a person in the supreme court in vermont agency reiterated the rule of law just of construction that in a statute or a reference to a person does not include the sovereign because the united states is not a person it cannot bring its own action or section two ninety two be that principled and recognize for one hundred fifty years the government likes for life on history but that's one history element of history that the government from buckley has found a page one forty the decision for twenty four us and one forty and so we hurdle that these provisions of the act vested in the commission primary responsibility for conducting civil litigation in the courts of the united states for vindicating public rights violate article two second section two clause to such functions may be discharged only by persons who are officers of the united states within the language in that section the crux of this is the function performed by the by the litigants and the function here is the enforcement of the public laws of the united states under the government's logic the federal election commission that was struck down in buckley would have been perfectly valid if why if you rule for four women here on the on the basis of the appointments calls you not going to take down the false claims that and that is the distinction the critical distinction between private and public rights in the false claims act what is being asserted there is or private rights but it's the proprietary injury of the united states that is a private right it's it's essentially a tort claim by the government but the government has assigned to the relator that was recognized in the money agency case that's the basis for standing under the false claims that this is fundamentally different here we have public rights in this is the enforcement of public law with penal provisions so therefore if if the points clause is a basis for invalidating this particular t t n statute it will not take court is not an officer of the officer or does not hold a position within the government for the relay torrie that the appointments clause doesn't apply these cases simply hold that these individuals were not officers of the united states because they were agents of the united states in the often case in a phrase or merchandise it was held to be an agent and therefore it was not did not need to be appointed in conformance with the appointments clause likewise in jermain we have a case in which the surgeon was appointed to examine pension applicants and he was charged with extortion on the statute simply didn't apply to this gentleman because he was not an officer of the united states instead it was merely an agent of the united states government conducting his his duties in this case we and seems to me you know a couple of things mr connor scrymgeour said many times congress can choose how it wants to enforce particular laws one of the things that congress has done is given there are lots of examples where it is going to private individuals the right to force quote public laws so for example a private individual can bring a sherman antitrust case where they can bring a civil rico case where they can bring title seven case for punitive damages all those things are essentially for forcing public rights we give to public to private individuals the remarkable can use those none of those cases seem to have ever been challenged on the grounds that they violate the take care costs now it is true in those cases those individual plaintiffs have folks standing they have to show the constitutional minimum of an injury in fact but the standing is really taken care of and we take our situation which is another example of congress assigning to private persons the right to enforce public rights that there's not as potential and as mischief in those cases to upset the executive branch's view of what the law should be or what it might want to do in a rico case or what it might want to do in the end i trust situation as there is an agency that talks about leaving the question open whether one that would be the result if the united states were to sue a private person and here we're talking about a person as we're talking about who would be the plaintiff so for example if there are those claims that cases where states had been quote persons or purposely the purposes of affirmatively filing case and our position would be notwithstanding the very old district court case which i don't think represents a continuation of history of one case in the mid eighty's hundreds are positioned to be that the united states the court of appeals cases dealing with the queen to be false claims act per se i would note the majority of those cases were decided before the supreme court's case in stevens it's only the riley case that really comes after stevens and i think g trying members of the executive branch once the independent counsel was appointed the executive branch could no longer investigate it interestingly enough the one thing except if in the ethics in government act would be sustained versus dealing with a statute single statute involving patmos marking where in fact the government for better or for worse doesn't have a history of filing a lot of these cases and  very much casey submitted