### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 19-2273

U NITED S TATES OF A MERICA ex rel. CIMZNHCA, LLC, Plaintiff-Appellee

,

v.

UCB, I NC ., et al., Defendants

, A PPEAL OF :

U NITED S TATES OF A MERICA , Appellant

.

____________________
Appeal from the United States District Court for the Southern District of Illinois. No. 3:17-cv-00765-SMY-MAB — Staci M. Yandle

, Judge

.

____________________

A RGUED J ANUARY 23, 2020

— D ECIDED A UGUST 17, 2020

____________________

Before R OVNER, H AMILTON , and S CUDDER , Circuit Judges

.
H AMILTON , Circuit Judge . The False Claims Act allows the United States government to dismiss a relator’s qui tam suit over the relator’s objection withnotice and opportunity for a hearing. 31 U.S.C. § 3730(c)(2)(A). The Act does not indicate2 No. 19-2273

how, if at all, the district co urt is to review the government’s decision to dismiss. The D.C. Ci rcuit has said not at all; the Ninth Circuit has said for a rational basis. Compare Swift v. United States , 318 F.3d 250 (D.C. Cir. 2003), with United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp. , 151 F.3d 1139 (9th Cir. 1998). In this case, the district court said it agreed with the Ninth Circuit bu t applied something closer to administrative law’s “arbitrary and capricious” standard and denied dismissal. The governme nt has appealed. The relatorcontends we should either dismiss for want of appellate jurisdiction or a ffi rm.

We fi nd that we have jurisdiction and reverse. First, we interpret the Act to require the government to intervene as a party before exercising its right to dismiss under§ 3730(c)(2)(A). We think it best, however, to construe the government motion here as a motion to both intervene and dismiss. This solves the jurisdic tional problem without needing to create a new category of collateral-order appeals. On the merits, we view the choice between the competing standardsas a false one, based on a misunderstanding of the government’s rights and obligations un der the False Claims Act. And by treating the government as seeking to intervene, which it should have been allowed to do, we can apply a standard for dismissal informed by Federal Rule of Civil Procedure 41.

I. Factual and Procedural Background
In 1863, “a series of sensational congressional investigations” revealed that war-pro fi teering military contractors had billed the federal government for “nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed” the government’s procurement e ff orts. United States v. McNinch , 356 U.S. 595, 599 (1958). In response,No. 19-2273 3

Congress passed the False Claims Act, now codi fi ed at 31 U.S.C. §§ 3729–3733. The Act authorizes a private person, called a relator, to enforce its terms by fi ling suit “for the person and for the United States Government.” § 3730(b)(1). Suits of this type were once so commo n that “[a]lmost every” penal statute could be enforced by them. Adams v. Woods , 6 U.S. (2 Cranch) 336, 341 (1805). Such suits are called “qui tam” suits, from a Latin tag meaning, “who as well for the lord king as for himself sues in this ma tt er.” If the relator’s qui tam action is successful, she receives a portion of the recovery as a bounty; the lion’s share goes to the government. § 3730(d).
The False Claims Act prohibits, among other acts, presenting to the government “a false or fraudulent claim for payment or approval.” § 3729(a)(1)(A). One way to present a false claim is to present to a federal healthcare program a claim for payment that violates the Anti-Kickback Statute, 42 U.S.C.§ 1320a-7b(b), which prohibits giving or receiving “remuneration” in return for such pr ograms’ business. See 42 U.S.C. § 1320a-7b(g) (violations of the An ti-Kickback Statute also violate the False Claims Act). For a limited liability company called Venari Partners, doing business as the “National HealthCare Analysis Group,” this law presented a business opportunity. Venari Partners has four members (Sweetbriar Capital,LLC; 101 Partners, LLC; Min-Fam-Holding, LLC; and Uptown Investors, LP), themselves composed of one or two individual investors, six in total. Venari Partners formed eleven daughter companies, each for th e single purpose of prosecuting a separate qui tam action. All eleven actions allege essentially identical violations of the False Claims Act via the Anti-4 No. 19-2273

Kickback Statute by dozens of defendants in the pharmaceutical and related industries across the country.

The relator in this case is CIMZNHCA, LLC, one of those Venari companies. Its complaint, fi led in 2017 in the SouthernDistrict of Illinois, alleges that defendants illegally paid physicians for prescribing or recommending Cimzia, a drug manufactured by defendant UCB, Inc. to treat Crohn’s disease, to patients who received bene fi ts under federal healthcare programs. The relator alleges that the illegal kickbacks took theform of free education services provided by nurses to physicians and their patients and free reimbursement support services, that is, assistance with insurance paperwork.

Once the relator fi led this action, the government had the right “to intervene and proceed” as the plainti ffwith the “primary responsibility” for prosecuting it. 31 U.S.C.§§ 3730(b)(2), 3730(c)(1). The government chose not to exercise that right. The False Clai ms Act also gives the government the right to dismiss the action over the relator’s objectionif the relator is provided notice and an opportunity for a hearing. § 3730(c)(2)(A). This right the government has sought to exercise. On December 17, 2018, the government fi led a motion to dismiss, representing that it had investigated the Venari companies’ claims, incl uding CIMZNHCA’s, and found them “to lack su ffi cient merit to justify the cost of investigation and prosecution and otherwise to be contrary to the public interest.” The district cour t held a hearing on the government’s motion and issued an opinion denying it.

The court considered fi rst what standard of review applied to the government’s motion under § 3730(c)(2)(A), which itself supplies none. The government urged adoption of the standard announced in Swift v. United States , 318 F.3dNo. 19-2273 5

250, 253 (D.C. Cir. 2003), which gives the government “unfettered” discretion to dismiss. Relator argued for the more demanding burden-shifting test announced in United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp. , 151 F.3d 1139 (9th Cir. 1998). Under that test, the government must fi rstidentify a “valid government purpose” and then show “a rational relation between dismissal and accomplishment of the purpose.” Id. at 1145. If the government does so, the burden shifts to the relator to show that “dismissal is fraudulent, arbitrary and capricious, or illegal.” Id.
Reasoning that Congress would not command the hollow ritual of convening a hearing on a preordained outcome (no one deliberates about the fall of Troy, as Aristotle said), the district court concluded that Sequoia Orange supplied theproper standard. Deeming the government’s general evaluation of the Venari compan ies’ claims to be insu ffi cient as toCIMZNHCA in particular, and hearing notes of mere “animus towards the relator” in the government’s arguments, thecourt concluded further that the government’s decision to dismiss was “arbitrary and capricious” and “not rationally related to a valid governmental purpose.”

After the district court denied its motion to reconsider, the government took this appeal, pe nding which the district court proceedings have been stayed. Our jurisdiction is contested. On the merits, the government argues that Swift, not Sequoia Orange , supplies the proper stan dard and that it satis fi ed the Ninth Circuit’s test in any event. Relator argues that Swift should be rejected and that the district court correctly applied Sequoia Orange . We conclude fi rst that we have jurisdiction and second that the choice presented to us on the merits is a false one, though the correct answer lies much nearer to Swift6 No. 19-2273

than Sequoia Orange . We reverse and remand with instructions to dismiss this action.

II. Analysis

A. The False Claims Act
We begin with an overview of the False Claims Act’s most relevant provisions. 1 A qui tam action under the Act isbrought “for the person and for the United States Government” and must be fi led “in the name of the Government.” 31 U.S.C. § 3730(b)(1). The relato r may voluntarily dismiss the action “only if the court and the A tt orney General give wri tt en consent to the dismissal and their reasons for consenting.” Id.
The relator’s complaint must be fi led under seal and may not be served on the defendants until the court so orders. § 3730(b)(2). Upon fi ling, the relator must serve the government with a copy of the complaint and a “wri tt en disclosureof substantially all material evidence” in the relator’s possession. Id. The government then has sixty days, id. , extendable for “good cause shown,” § 3730(b) (3), to decide whether “to intervene and proceed with th e action” while the complaint remains under seal. § 3730(b)(2). Atthe end of the seal period, “the Government shall (A) proc eed with the action, in which case the action shall be cond ucted by the Government; or (B) notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.” § 3730(b)(4).
Before 1986, if the government intervened in the action, the relator’s participation was at an end. In 1986, however,

1 The text of 31 U.S.C. § 3730(b)–(c) is attached as an appendix to this opinion.No. 19-2273 7

Congress amended the False Claims Act to allow for the relator’s continued participation even after the government intervenes. Allowing two plainti ff s has given rise to a new set of tensions that the provisions at the heart of this case were designed to manage. See Sequoia Orange , 151 F.3d at 1143–44, citing United States ex rel. Kelly v. Boeing Co. , 9 F.3d 743, 745 (9th Cir. 1993), among others. “If th e Government proceeds with the action,” it assumes “primary responsibility” for prosecuting it. § 3730(c)(1). The relator re tains “the right to continue as a party to the action,” but critica lly for our purposes, that right is “subject to the limitations set forth in paragraph (2).” Id.

The most relevant of these lim its is the government’s right to dismiss the action:
The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been noti fi ed by the Government of the fi ling of the motion and the court has provided the person with an opportunity for a heari ng on the motion.
§ 3730(c)(2)(A). The other limits are the government’s right to

se tt le the action “notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed se tt lement is fair, adequate, and reasonable under all the circumstances ,” § 3730(c)(2)(B); the government’s right to seek a court order restraining the relator’s abusive litigation conduct, § 3730(c)(2)(C); and the defendant’s right to do the sa me. § 3730(c)(2)(D).

“If the Government elects not to proceed with the action,” the relator “shall have the right to conduct the action.” § 3730(c)(3). The relator’s sole obligations to the government8 No. 19-2273

thereafter are to supply it on request with copies of all pleadings and, at the government’s expense, copies of all deposition transcripts. Id. The court may “nevertheless permit the
Government to intervene at a later date upon a showing of good cause.” Id. “Whether or not the Government proceeds with the action,” the government may seek a stay of discovery if it would interfere with an ongoing investigation into the same facts. § 3730(c)(4). Finally, if the government elects to pursue “any alternate remedy” for the challenged conduct, the relator may not be cut out; she has “the same rights” in the alternate proceeding as in the qui tam acti on. § 3730(c)(5).

B. Appellate Jurisdiction: Appeal from the Denial of a Motion to Intervene
We must decide our jurisdiction fi rst. West v. Louisville Gas & Elec. Co. , 920 F.3d 499, 503 (7th Cir. 2019). Ordinarily we have appellate jurisdiction of the district courts’ fi nal judgments under 28 U.S.C. § 1291 and a few categories of interlocutory orders under § 1292. Denials of motions to dismiss rarely fi t into those categories, but the government argues here that the denial of its motion to dismiss under 31 U.S.C. § 3730(c)(2)(A) was a “collateral order,” not a fi nal judgment but by a “practical construction” of 28 U.S.C. § 1291 still a “ fi

nal decision” within its terms. See O tt v. City of Milwaukee , 682F.3d 552, 554 (7th Cir. 2012) (internal quotation marks omitted). We see no need to create a new category of appealablecollateral orders. In substance, the government appeals a denial of what should be deemed a motion to intervene and thento dismiss. It is well established that denials of motions to intervene are appealable.No. 19-2273 9

Collateral orders are orders that are fi nal with respect tothe issue they decide and important enough to be immediately appealable. Mohawk Industries v. Carpenter, 558 U.S. 100, 103 (2009), citing Cohen v. Bene fi cial Indus. Loan Corp. , 337 U.S. 541, 546 (1949). Protecting the default rule of one appeal percase, however, means that the universe of appealable collateral orders “must remain narrow and selective in its membership.” Mohawk Industries , 558 U.S. at 113, quoted in O tt, 682 F.3d at 555. The question is not whether the particular order is collateral but whether “the entire category” of orders to which it belongs is. JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co. , 707 F.3d 853, 868 (7th Cir. 2013), quoting Mohawk

, 558 U.S. at 107.
This categorical analysis is di ffi cult here because the type of order appealed here is very rare. In the history of the False Claims Act since 1986, the government tells us, only one other district court has denied its § 3730(c)(2)(A) motion to dismiss, which the Ninth Circuit recently declined to hold a collateral order. 2 The power of a non-party to force dismissal of another’s lawsuit is otherwise unheard of in our law. See, e.g., Fed. R. Civ. P. 17(a)(3 ) (real party in interest must “ratify, join,

2 United States v. Academy Mortgage Corp. , No. 3:16-cv-02120-EMC, 2018 WL 3208157, at *2–*3 (N.D. Cal. June 29, 2018), appeal dismissed sub nom. United States ex rel. Thrower v. Academy Mortgage Corp. , No. 18-16408, ___ F.3d ___, 2020 WL 4462130 (9th Cir. Aug. 4, 2020). The Ninth Circuit in Throwerrejected the government’s argument that an order denying a motion to dismiss under 31 U.S.C. § 3730(c)(2)(A) is appealable as a collateral order. The Throwercourt was not presented with and did not consider the possibility of treating the government’s motion to dismiss as a motion both to intervene and to dismiss, as suggested in Swift v. United States , 318 F.3d 250, 252 (D.C. Cir. 2003), which is the path we follow in finding that we have jurisdiction over th is appeal, as explained below.10 No. 19-2273

or be substituted into” acti on brought on its behalf); Minneapolis-Honeywell Regulator Co. v. Thermoco, Inc. , 116 F.2d 845, 847 (2d Cir. 1941) (L. Hand, J.) (“[T]he companies could not make any motion unless they became parties ... although they might ... have combined a motion to intervene with a motion to dismiss.”).

1. Eisenstein, Footnote 2
The government argues that the jurisdictional issue has already been resolved in its favor by United States ex rel. Eisenstein v. City of New York , 556 U.S. 928 (2009), the Supreme Court’s most recent word on th e relationship between the relator and the government in a qui tam case in which the government has declined to intervene. The holding of Eisenstein is that, absent intervention, the government is not a “party” for the purpose of determining applicable appeal deadlines. 556 U.S. at 937; see 28 U.S.C. § 21 07(b) (deadline where United States is “party”); Fed. R. App. P. 4(a)(1)(B) (same). Along the way, the Court observed that, the government’s non-party status notwithstanding, it need not intervene to appeal “any order” in a qui tam suit. 556 U.S. at 931 n.2. Rather, its immediate appeal would lie from the relator’s voluntary dismissal of the case without the government’s wri tt en consent. Id. , citing 31 U.S.C. § 3730(b)(1). And denials of motions to intervene have long been held immediately appealable. Id. , citing § 3730(c)(3).
The government maintains there is “no basis for distinguishing” Eisenstein ’s examples from an order denyinga motion to a dismiss under § 3730(c) (2)(A). But the bases are obvious: voluntary dismissal ends the case, and the immediate appealability of a denial of intervention is even older than the collateral-order doctrine announced in Cohen . See BrotherhoodNo. 19-2273 11

of R.R. Trainmen v. Baltimore & Ohio R.R. Co. , 331 U.S. 519, 524– 25 (1947). Footnote 2 of Eisenstein does not stand for the proposition stated by the government . It nonetheless indicates the correct path to solving the jurisdictional problem: treat the government’s motion to dismiss as a motion both to intervene and to dismiss.

2. Intervention in Substance
An intervenor comes between the original parties to ongoing litigation and interposes between them its claim, interest, or right, which may be adverse to either or both of them. See Eisenstein , 556 U.S. at 933; Rocca v. Thompson , 223 U.S. 317, 330–31 (1912). That is exactly what the government wants to do here. The government claims a superior right to dispose of this lawsuit between the relator and the defendants by ending it on terms it deems suitable. The relator holds the present statutory right “to conduc t the action,” 31 U.S.C. § 3730(b)(4)(B), as well as a p artial congressional assignment of any resulting damages, Vermont Agency of Nat. Res. v. United States ex rel. Stevens , 529 U.S. 765, 773 (2000), both of which the government asserts the right to nullify. The defendants, as their pending motions to dismiss reveal, desire the fi nality of a dismissal with prejudice. Th e government asserts the right to deny defendants that fi nality by having the action dismissed with prejudice as to the relator but without prejudice as to it. In sum, the government wants a say—the fi nal say— in conducting this lawsuit. Th e district court’s order denying that wish is in substance an order denying a motion to intervene.12 No. 19-2273

3. Intervention in Form
There is another reason to construe for jurisdictional purposes the government’s motion to dismiss as a motion to intervene and dismiss: it ought to have been fi led that way to begin with. Cf. Swift v. United States , 318 F.3d 250, 252 (D.C. Cir. 2003) (if government were required to intervene before dismissing, “we could construe the government’s motion to dismiss as including a motion to intervene”).

As a ma tt er of form, the government did not move to intervene before fi ling its motion to dismiss under § 3730(c)(2)(A). Several courts of appeals have expressly or tacitly endorsed its prerogative not to do so. Chang v. Children’s Advocacy Ctr. of Del. , 938 F.3d 384, 386 (3d Cir. 2019); Ridenour v. Kaiser-Hill Co. , 397 F.3d 925, 933–34 (10th Cir. 2005); Swift, 318 F.3d at 251–52; United States ex rel. Kelly v. Boeing Co. , 9 F.3d 743, 753 n.10 (9th Cir. 1993); see also United States v. Everglades Coll., Inc. , 855 F.3d 1279, 1285–86 (11th Cir. 2017) (se tt lements under § 3730(c)(2)(B)). These decisions did not address appeals of denials of dismissal, but adhering to them in this case of a denial would require in e ff ect creationof a new category of appealable collateral orders. The Supreme Court has fi rmly discouraged that step. See Mohawk

, 558 U.S. at 113–14.

There is a be tt er solution. We read the False Claims Act as requiring the government to in tervene before exercising any right under § 3730(c)(2). Accord, United States ex rel. Poteet v. Medtronic, Inc. , 552 F.3d 503, 519 (6th Cir. 2009) (“Section 3730(c)(2)(A) applies only whenthe government has decidedto ‘proceed[] with the action’ and has assumed ‘primary responsibility for prosecuting the action.’”).No. 19-2273 13

a. Text and Structure of § 3730(c)
To explain our solution of th e jurisdictional problem, we begin with the statute’s text. E.g., Ross v. Blake , 136 S. Ct. 1850, 1856 (2016). Subsection (c) of § 3730 bears the heading,“Rights of the parties to qui tam actions.” One would thus expect subsection (c) to treat the rights of parties to qui tam actions, which the government is not unless and until “it intervenes in accordance with the procedures established by federal law.” Eisenstein , 556 U.S. at 933. In fact, the structure of subsection (c) guides its proper interpretation as to which rights litigants possess unde r which procedural circumstances. See Ortega v. Holder, 592 F.3d 738, 743 (7th Cir. 2010) (“we must consider not only the words of the statute, but also the statute’s structure.”). Eachparagraph of subsection (c)— except paragraph (2)—announces atits outset the proceduralposture to which it applies. Paragraph (1) applies “If the Government proceeds with the action.” Paragraph (3) applies “Ifthe Government elects not to proceed with the action.” Paragraph (4) applies “Whether or not the Government proceeds with the action.” Paragraph (5) applies “Notwithstanding subsection (b),” that is, notwit hstanding the relator’s qui tam action altogether. Where, then, does paragraph (2) fi t into this
structure?

Nowhere, the D.C. Circuit answered in Swift . According to Swift, paragraph (2) is entirely free- fl oating; it is not “constrained by” and operates “independent[ly] of” the rest of subsection (c), including speci fi cally paragraph (1). 318 F.3d at 252. There are several reasons to question this reading. First, it makes surplusage of paragraph (4)’s introductory phrase, “Whether or not the Government proceeds with the action.” But see, e.g., Reiter v. Sonotone Corp. , 442 U.S. 330, 33914 No. 19-2273

(1979) (anti-surplusage canon) ; see also Antonin Scalia & Bryan A. Garner, Reading Law 156 (2012) (“Material within an indented subpart relates only to that subpart.”). If the background assumption of subsection (c) were that each of its paragraphs applied no ma tt er whether the government had intervened, Congress would not have speci fi ed that paragraph(4), and only paragraph (4), applies “Whether or not the Government proceeds with the action.”

The Swift analysis also makes surplusage of the provision in paragraph (1) that a post-intervention relator has the right to continue as a party “subject to the limitations set forth in paragraph (2).” Again, if the government enjoyed its rightsunder paragraph (2) under all circumstances and in any posture, there would have been no reason to specify that the relator’s continued participation as a party, and only the relator’s continued participation as a party, is “subject to” paragraph (2).
Along these lines, § 3730(b)(4)(B) gives the relator “the right to conduct the action”—without quali fi cation—when the government has declined to intervene. That phrase is picked up by paragraph (c)(3), which provides that, “If the Government elects not to proceed with the action,” the relator “shall have the right to conduct the action,” while reserving certain rights (to be served with copies of certain papers, to intervene later for good cause) to the government. Thus, when Congress wanted to qualify the relator’s “right to conduct the action” absent intervention, it did so in paragraph (c)(3). It would be odd if the unquali fi ed “right to conduct the action” in subparagraph (b)(4)(B) and the nearly unquali fi ed “right toconduct the action” in paragraph (c)(3) were in fact the profoundly quali fi ed right to conduct the action so long as theNo. 19-2273 15

government does not wish to have it dismissed or se tt led under subparagraphs (c)(2)(A) or (B)—neither of which even mentions the relator’s “right to conduct the action.”
So where does paragraph (2) best fi t in? The second half of the paragraph plainly operates against the backdrop of government intervention. Speci fi cally, subparagraph (C) provides for “limitations” on the relator’s participation where its “unrestricted participation ... wo uld interfere with or unduly delay the Government’s prosecution of the case.” (Emphasisadded.) Similarly, subparagraph (D) provides that the relator’s “participation” may be “limit[ed]” where its “unrestricted participation” would h arass or unduly burden the defendant. Obviously a defendant cannot “restrict the participation” of its sole advers ary in a lawsuit. We fi nd subparagraph (D) even more telling than subparagraph (C) for our purposes because subparagraph (C) makes the government’s participation explicit while subparagraph (D) tacitly assumes it—suggesting that so too does the rest of paragraph (2).
We conclude that paragraph (2) fi ts in best right where paragraph (1) puts it: as a limit on the right of the relator to continue as a party after the government has intervened. It can have no other independent operation without disrupting the structure of the statute as a whole. Swift reasoned that, to justify this reading, “either § 3730(c)(2) would have to be a subsection of § 3730(c)(1)—whic h it is not—or § 3730(c)(2) would have to contain language stating that it is applicable only in the context of § 3730(c )(1)—which it does not.” 318 F.3d at 252. The fi rst minor premise, th at paragraph (c)(2) is not a subsection of paragraph (c)(1 ), is true as a typographic

ma tt er but otherwise fails to capture how the fi ve paragraphs of subsection (c) relate to one another in text and logic. As our16 No. 19-2273

premises di ff er, so too does our co nclusion: paragraph (c)(2) is be tt er read to operate only “If the Government proceeds with the action.” § 3730(c)(1).
The remaining arguments advanced by Swift and cases adopting its reading against a need for intervention to dismiss are not persuasive. First, Swift neutered the binary choice put to the government by Congress—intervene, § 3730(b)(4)(A), or decline, § 3730(b)(4)(B)—by fi nding a third way to dismiss without intervention under § 3730(c)(2)(A). From the provision that the government “may elect to intervene and proceed with the action,” § 3730(b)(2), the court reasoned that “[e]nding the case by dismissing it is not proceeding with the action; to ‘proceed with the acti on’ means ... that the case will go forward with the governme nt running the litigation.” 318 F.3d at 251. Accord, Everglades Coll., Inc. , 855 F.3d at 1285 (settlement under § 3730(c)(2)(B)); Ridenour, 397 F.3d at 933.
In our view, this awkward reading of the provision is not the be tt er reading. “Proceeding” in the litigation context is chie fl y de fi ned as “the regular and orderly progression of a lawsuit.” Proceeding, Black’s Law Dictionary (4th ed. 2011).
We fi nd no support in Swift or elsewhere for the proposition that the regular and orderly prog ression of a lawsuit requires litigating to favorable judgment or involuntary dismissal, to the exclusion of voluntary di smissal, particularly upon se tt lement. If “proceed” were understood that way, how much litigating would the government have to do before it could then dismiss without running afoul of the command to “proceed”? This reading of “proceed” suggests further that “electing not to proceed” would include elec ting to dismiss voluntarily. That cannot be right because paragraph (c)(3) gives the relator “the right to conduct the action” where “the GovernmentNo. 19-2273 17

elects not to proceed with th e action.” One cannot “conduct” a lawsuit that has been dismissed.

b. Serious Constitutional Doubts?

Second, the Tenth Circuit in Ridenour, invoking the Take Care Clause of Article II, § 3, and the constitutional-doubt canon of statutory interpretation, see Zadvydas v. Davis

, 533 U.S. 678, 689 (2001), rejected the reading we adopt here in part because “to condition the Government’s right ... to dismiss an action in which it did not initially intervene upon a requirement of ... good cause [under § 3730(c)(3)] wouldplace the FCA on constitutionally unsteady ground” by “unnecessarily bind[ing] the Government.” 397 F.3d at 934; see also Kelly, 9 F.3d at 753 n.10 (because statute does not “prohibit[]” it, interpretation allo wing dismissal without intervention is “entirely appropriate” as illustration of “meaningful [executive] control” over relators’ FCA suits). Respectfully, we do not fi nd constitutional doubt a sound reason to follow this path.

The canon of constitutional doubt teaches that when two interpretations of a statute are “fairly possible,” one of which raises a “serious doubt” as to the statute’s constitutionalityand the other does not, a court should choose the interpretation “by which the question may be avoided.” Zadvydas , 533 U.S. at 689; see United States ex rel. A tt ’y General v. Del. & Hudson Co. , 213 U.S. 366, 407–08 ( 1909). The canon does not hold that any reading of a statute not expressly “prohibited” mustbe adopted if it will relieve the executive of any burden of unde fi ned weight which the judiciary deems without analysis to be “unnecessary.” But that is how the canon was applied in Ridenourand Kelly . In our view, this analysis is misguided for two reasons. First, it indulges every presumption in favor of18 No. 19-2273

the statute’s invalidity rather than its validity. Second, it simply does not show that the False Claims Act is in serious danger of unconstitutionality unless dismissal under § 3730(c)(2)(A) applies only afte r the government has declined
to intervene.

First, Ridenourand Kelly inverted the constitutional-doubt canon, and constitutional avoidance principles generally, by creating constitutional problems in one section of a statute to solve them in a di ff erent section of the statute. “Good cause” is a uniquely fl exible and capacious concept. See Good Cause

,
s.v. Cause , Black’s Law Dictionary (4th ed. 2011) (“A legally

su ffi cient reason.”). But neither Ridenournor Kelly o ff ered an interpretation of what cons titutes “good cause” under § 3730(c)(3). Neither acknowledged the variety of situations calling for that decision. 3 Both assumed without analysis that any “good cause” requirement would tend to fe tt er the executive unconstitutionally—neglecting, at minimum, the possibility that avoiding o ff ense to the separation of powers in a case that actually risks it wo uld itself weigh heavily in any “good cause” determination.

3 For example, the Article II implications of denying good cause to intervene could vary widely. Compare a case where the government seeks to dismiss at an early stage because it has consistently held the challenged conduct to be lawful and desirable, to a case where the government seeksto dismiss on the eve of trial of meritorious claims only to protect a highranking executive official’s pr ivate business interests. See Yick Wo v. Hopkins , 118 U.S. 356, 372–74 (1886), cited by Heckler v. Chaney , 470 U.S. 821, 838 (1985); see also Andrew Kent et al., Faithful Execution and Article II

,132 Harv. L. Rev. 2111 (2019) (original public meaning of duty to “faithfully execute” was “fiduciary”).No. 19-2273 19

Both decisions thus defaulted to the most constitutionally

o ff ensive reading of § 3730(c)(3) rather than the least. Both thereby created rather than avoided doubtful questions ofconstitutional law, which then required “solving” by doubtful interpretation of § 3730(c)(2 )(A). Our duty, though, is to indulge “[e]very presumption ... in favor of the validity of the
statute.” Graves v. Minnesota , 272 U.S. 425, 428 (1926). Our reading of § 3730(c)(2)(A), by contrast, presumes § 3730(c)(3) is valid on its face and simply defers consideration of genuine constitutional concerns until they ripen in a speci fi c context and are thus more properly presented for decision. See Ashwander v. T.V.A. , 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

Second, because neither Ridenournor Kelly o ff ered an account of what “good cause” requires nor of what Article II requires in relation to “good caus e” dismissals, neither decision raises a serious possibility that the constitutionality under Article II of the False Claims Act depends on a particular construction of § 3730(c)(2)(A). As a general ma tt er, the SupremeCourt has reserved decision on the constitutionality under Article II of qui tam actions. Vermont Agency of Nat. Res. v. United States ex rel. Stevens , 529 U.S. 765, 778 n.8 (2000). Their ancient pedigree, however, together with their widespread use at the time of the Founding, suggests th at the False Claims Act as awhole is not in imminent danger of unconstitutionally usurping the executive power. See id. at 774–77 (“originated around the end of the 13th century”); Marvin v. Trout , 199 U.S. 212, 225 (1905) (“in existence for hund reds of years in England, and in this country ever since the foundation of our government”); Adams v. Woods , 6 U.S. (2 Cranch) 336, 341 (1805) (Marshall, C.J.) (“Almost every fi ne or forfeiture under a penal statute, may be recovered by an action of debt [qui tam].”); 320 No. 19-2273

William Blackstone, Commentaries *160 (Forfeitures created by penal statutes “more usually are given at large, to any common informer; or ... to the pe ople in general ... . [I]f any one hath begun a qui tam , or popular, action, no other person can pursue it; and the verdic t passed upon the defendant ... is ... conclusive even to the king himself.”). Indeed, a common function of qui tam actions, and one of the earliest, has been to regulate the exercise of executive power itself. Randy Beck, Qui Tam Litigation Against Government O ffi cials , 93 Notre Dame L. Rev. 1235, 1260–61 (2018) (discussing Statute of York 1318, 12 Edw. 2); id. at 1269–1304 (early America n use of such qui tam actions). While reserving decision on the Article II consequences, as

a ma tt er of statutory interpretation, Stevens rejected an agency theory of the government-relator relationship under the False Claims Act: “to say that the rela tor here is simply the statutorily designated agent of the United States, in whose name ... the suit is brought ... is precluded ... by the fact that the statute gives the relator himself an interest in the lawsuit .” 529 U.S. at 772 (some emphasis omi tt ed). That interest is refl ected in the rights retained by the relator even after the government has intervened. Id. , citing § 3730(c)(1), (c)(2)(A), & (c)(2)(B). It is re fl ected as well in “the right to conduct the action” that indisputably belongs to the relator once the government declines to intervene and can be wrested from the relator later only on a showing of good cause. § 3730(b)(4)(B) & (c)(3). That right includes, fo r example, the right to choose which claims to pursue, the right to engage the machinery of discovery, and the right to se tt le claims without government oversight (excepting the government’s veto power under § 3730(b)(1) if the se tt lement is entered as a voluntary dismissal, though it need not be).No. 19-2273 21

We are not persuaded that a serious marginal risk of unconstitutionality is created by including dismissal in the list of powers reclaimable by th e government only for good cause. The power to terminate the action is simply part of the power “to conduct the action.” See Fed. R. Civ. P. 41(a); see also Kelly, 9 F.3d at 754 & n.14 (“[O]nce prosecution has beeninitiated, the government has greater authority to ... ultimately end the litigation in a qui tam action than it does in an independent counsel’s action;” true no ma tt er whether § 3730(c)(2)(A) requires intervention), applying Morrison v. Olson , 487 U.S. 654 (1988). The government’s automatic intervention rights during the seal period are themselves extendable only for “good cause,” § 3730( b)(3), and even in criminal cases, the government must have “leave of court” to dismiss the prosecution. Fed. R. Crim. P. 48(a); Rinaldi v. United States

, 434 U.S. 22, 29–32 (1977). Accordingly, we do not see a serious possibility that the constitutionality of the False Claims Act will stand or fall on a requirem ent that the government showgood cause to intervene and dismiss after its automatic intervention rights have expired.

We have warned before thatthe constitutional-doubtcanon “must be used with care, for it is a closer cousin to invalidation than to interpretation. It is a way to enforce the constitutional penumbra.” United States v. Marshall , 908 F.2d 1312, 1318 (7th Cir. 1990) (en banc); see also Richard A. Posner, The Federal Courts 285 (1985) (The canon “enlarge[s] the ... reach of constitutional prohibition ... to create a ... ‘penumbra’ that has much the same prohibitory e ff ect as the ... Constitution itself.”).
The application of the canon in Ridenourand Kelly illustrates this warning. The canon can produce a hazy penumbra22 No. 19-2273

of quasi-constitutional law that is used to limit legislative power when statutes are construed, without constitutional adjudication of a concrete case or controversy, to exclude all “unnecessar[y]” executive restrict ions and to require all “entirely appropriate” executive prerogatives. See Ridenour, 397 F.3d at 934; Kelly, 9 F.3d at 753 n.10.
Our task is not to chip away at the legislation under the guise of interpreting it until every conceivable constitutional concern is assuaged. See Salinas v. United States , 522 U.S. 52, 59–60 (1997), citing among others United States v. Albertini , 472 U.S. 675, 680 (1985). Our task is to apply the Act until a party with standing convinces us or the Supreme Court that to do so would be unconstitutional. The constitutional-doubt canon can be used to resolve genuine doubts when the language is ambiguous and the constitutional danger clear and present. Marshall , 908 F.2d at 1318. It should not be used where, as here, the constitutional questi ons are more dubious than the statutory text. Statutory clarity should not yield to penumbral obscurity.
In sum, we treat the government’s motion to dismiss as a motion both to intervene and then to dismiss under § 3730(c)(3) because intervention was in substance what the government sought and in form what the False Claims Act requires. Cf. Swift, 318 F.3d at 252 (“[I]f there were such a requirement, we could construe the government’s motion to dismiss as including a motion to intervene.”). The Supreme
Court in Eisenstein could not “disregard” the “congressionalassignment of discretion” to the government to intervene under the Act by treating the government as a party “even after it has declined to assume the rights and burdens a tt endant to full party status.” 556 U.S. at 933–34. Neither will we. TheNo. 19-2273 23

government cannot eat its cake and have it too. If the government wishes to control the actionas a party, it must intervene as a party, as provided for by Congress.
Having concluded that the government’s case for dismissal was not even rational, the district court here has necessarily expressed its view on th e government’s lack of “goodcause” to intervene under the Act. Accordingly, we have jurisdiction over the appeal of what amounted to an order denying a motion to intervene. E.g., Planned Parenthood of Wis., Inc. v. Kaul , 942 F.3d 793, 796–97 (7th Cir. 2019). We may proceed to the merits.

C. Merits: The Government Was Entitled to Dismissal
Treating the government as having sought to intervene solves the jurisdictional problem and o ff ers a standard on the merits of dismissal, in the absence of a speci fi c standard in 31 U.S.C. § 3730(c)(2)(A). The standard is that provided by theFederal Rules of Civil Procedure, as limited by any more speci fi c provision of the False Claims Act and any applicable background constraints on executive conduct in general. In this case, no such substantive limits apply, so the Rules are the beginning and the end of our analysis.
Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that “the plainti ffmay dismiss an action ” by serving a notice of dismissal any time “before the opposing party serves either an answer or a motion for summary judgment.” Dismissal is without prejudice unless the notice states otherwise. Fed. R. Civ. P. 41(a)(1)(B). This right is “absolute.” Marques v. Federal Reserve Bank of Chi. , 286 F.3d 1014, 1017 (7th Cir. 2002). “[O]ne doesn’t need a good reason, or even a sane or any reason” to24 No. 19-2273

serve notice under the Rule, id. , and the notice is self-executing and case-terminating. Id. at 1018; Smith v. Po tt er, 513 F.3d 781, 782–83 (7th Cir. 2008). In other words, once a valid Rule41(a) notice has been served, “the case [is] gone; no action remain[s] for the district judge to take,” and her further orders are void. Smith , 513 F.3d at 782–83. Here, the government fi led its “motion to dismiss” before the defendants had answered or moved for summary judgment, seeking dismissal without prejudice as to it and with prej udice as to the relator. It does

not ma tt er that the paper was labeled a “motion” rather than
a “notice.” Id. at 782. That looks like th e end of the case, on terms of the government’s choosing.
Actually, that was almost the end of the case because the provisions of Rule 41(a) are “[ s]ubject to ... any applicable federal statute.” Fed. R. Civ. P. 41(a)(1)(A). By itself, Rule 41(a) provides that “the plainti ff may dismiss an action,” id. , which obviously does not authorize an intervenor-plainti ff to e ff ect involuntary dismissal of the original plainti ff ’s claims. See Washington Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co.

, 922 F.2d 92, 97 (2d Cir. 1990). Bu t § 3730(c)(2)(A) provides otherwise. Picking up the language of Rule 41, the statute provides: “The Government may di smiss the action” without the relator’s consent if the relator receives notice and opportunity to be heard. § 3730(c)(2)(A). This procedural limit is the only authorized statutory deviation from Rule 41. Cf. § 3730(c)(2)(B) (authorizing se tt lement without relator’s consent only “if the court determines, after a hearing, that the proposed se tt lement is fair, adequate, and reasonable under all the circumstances”). Nor, because § 3730(c)(2)(A) twice refers to the government’s “motion,” should the statute be construed to eliminate the right to dismiss under the fi rst half of Rule 41(a), whose language it mirrors. See Adams v. Woods , 6No. 19-2273 25

U.S. (2 Cranch) 336, 337, 341 (1805) (Marshall, C.J.) (where statute of limitations provided that no person shall be “ prosecuted, tried or punished ... for any fi ne or forfeiture ..., unless the indictment or information ” was fi led within two years, statute was construed to bar actions of debt qui tam: otherwise “a distinct member of the sentence ... would be rendered almost totally useless”). Here, the relator received notice and took its opportunity to be heard. Once these had been accomplished, that should have been the end of the case.
This conclusion may seem counterintuitive. The law does not require the doing of a useless thing. Mashi v. I.N.S. , 585 F.2d 1309, 1314 (5th Cir. 1978). What, then, is the purpose of the statute’s additional process if the government’s litigationright is absolute and there is no substantive standard to apply? Congress sometimes demands that parties to a nascent legal dispute simply “communicate in some way” to a tt empt to resolve the dispute without court action, and there the judicial role is con fi ned to ensuring that the communication has in fact taken place on the terms speci fi ed by statute. Mach Mining, LLC v. E.E.O.C. , 575 U.S. 480, 494 (2015) (Title VII conciliation); cf. Fed. R. Civ. P. 26(c)(1) (parties must confer or attempt to confer before seeking court order on discovery dispute); Fed. R. Civ. P. 37(a)(1) (same). In such cases, however,the court is not called upon to serve as a mere convening authority—“and perhaps,” as the district judge put it here, “serve you some donuts and co ff ee”—while the parties carry on an essentially private conversation in its presence. Like the district court, we fi nd unpersuasive Swift ’s suggestion that “the function of a hearing when the relator requests one is simply to give the relator a formal opportunity to convince the government not to end the case.” 318 F.3d at 253.26 No. 19-2273

Not every case, though, will be like this one. For example, if the conditions of Rule 41(a)(1) do not apply, “an action may be dismissed at the plainti ff ’s request only by court order, on terms that the court considers prop er.” Fed. R. Civ. P. 41(a)(2). Thus, if the government’s chance to serve notice of dismissal has passed, see Fed. R. Civ. P. 41(a)(1)(A)(i), and the relator by hypothesis refuses to agree to di smissal, see Fed. R. Civ. P. 41(a)(1)(A)(ii), then a hearing under § 3730(c)(2)(A) could serve to air what terms of dismissal are “proper.” Cf. Swift

, 318 F.3d at 252–53.
Further, there are always background constraints on executive action, even in the quas i-prosecutorial context of qui tam actions and the deci sions to dismiss them. Heckler v. Chaney, 470 U.S. 821 (1985), cited by the government here, is not to the contrary. Hecklerheld that an administrativeagency’s decision not to take certain “investigatory and enforcement actions” had been “commi tt ed to agency discretion by law” and was thus not subject to judicial review under the Administrative Procedure Act. 470 U.S. at 824, 838; see 5 U.S.C. § 701(a)(2).

Heckleris an imperfect fi t for the False Claims Act because the Court relied in part on the fact that “when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights.” 470 U.S. at 832 (emphasis omi tt ed). That is not the case when the government dismisses a relator’s action un der the False Claims Act because “the statute gives the relator himself an interest in the lawsuit ” as well as a partial assignment of the government’s damages. Vermont Agency of Nat. Res. v. United States ex rel. Stevens , 529 U.S. 765, 772, 773 (2000); cf. Logan v. Zimmerman Brush Co. , 455 U.S. 422, 428–430 (1982) (Due Process ClauseNo. 19-2273 27

protects causes of action); id. at 438 (Blackmun, J., concurring for four Justices) (same for Equal Protection Clause).
More important, Hecklerreserved decision on what result would follow if there were a “colorable claim ... that theagency’s refusal to institute proceedings violated any constitutional rights” of the plainti ff s. 470 U.S. at 838. Its accompanying citation to Yick Wo v. Hopkins suggests the limits of executive nonenforcement decisions:
[E]nforcing these notices may ... bring ruin to ... those against whom they are directed, while others, from whom they are withheld, may be actually bene fi ted by what is thus done to their neighbors; and, when we remember that this action of non-acti on may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper in fl uences ..., it becomes unnecessary to suggest ... the injustice capable of being wrought.
118 U.S. 356, 373 (1886); see Heckler, 470 U.S. at 839 (Brennan, J., concurring) (“It is possibl e to imagine other nonenforcement decisions made for entirely illegitimate reasons, for example, ... in return for a bribe.”).
In this light, Sequoia Orange may be read to hold no more than that the government’s § 3730(c)(2)(A) dismissal may not violate the substantive component of the Due Process Clause. Demanding “no greater justi fi cation ... than is mandated by the Constitution itself,” Sequoia Orange equated its rationalrelation test to the test used to determine “whether executive action violates substantive du e process.” 151 F.3d at 1145,
1146. Swiftrejected as contrary to Hecklerthe Sequoia Orange28 No. 19-2273

point that “arbitrary or irrationa l” decisions not to prosecute could violate due process, 318 F.3d at 253, but Hecklerdoes not warrant such a strong statement. See Yick Wo , 118 U.S. at 370(no room “for the play and action of purely personal and arbitrary power”). In arguing a si milar case before the Ninth Circuit, 4 the government suggested that its § 3730(c)(2)(A) dismissal may not violate the Equal Protection Clause. See Oyler v. Boles , 368 U.S. 448, 456 (1962). Before this court, the government suggested, and even Swift entertained the possibility of, review for fraud on the court. See 318 F.3d at 253. We agree in principle with both suggestions, though we hope that these generous limits would be breached rarely if ever. We say only that in exceptional cases they could supply grist for the hearing under § 3730(c)(2)(A).
Not in this case, though. Wherever the limits of the government’s power lie, this case is not close to them. At bo tt om, the district court faulted the government for having failed to make a particularized dollar- fi gure estimate of the potential costs and bene fi ts of CIMZNHCA’s lawsuit, as opposed to themore general review of the Venari companies’ activities undertaken and described by the government. No constitutional or statutory directive imposes such a requirement. None is found in the False Claims Act. The government is not required to justify its litigation decisions in this way, as though it had to show “reasoned decisionmaking” as a ma tt er of administrative law, as in, for example, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 51–52 (1983).
We must disagree with the suggestion that the government’s decision here fell short of the bare rationality standard

4 See n.2, supra.No. 19-2273 29

borrowed by Sequoia Orange from substantive due process cases. “[T]he Due Process Clause was intended to prevent government o ffi cials from abusing their power, or employing it as an instrument of oppre ssion,” and “only the most egregious o ffi cial conduct can be said to be arbitrary in the constitutional sense.” County of Sacramento v. Lewis , 523 U.S. 833, 846 (1998) (internal quotation marks and alterations omi tt ed); see also Yick Wo , 118 U.S. at 369–70 (“[O]ur institutions of government ... do not mean to leave room for the play and action of purely personal and arbitrary power.”). Executive action is not due process of law when it“shocks the conscience;” when
it “o ff end[s] even hardened sensibilities;” or when it is “tooclose to the rack and the screw to permit of constitutional differentiation.” Rochin v. California , 342 U.S. 165, 172 (1952).
The government proposed to terminate this suit in part because, across nine cited agency guidances, advisory opinions, and fi nal rulemakings, it has consistently held that the conduct complained of is probably lawful. Not only lawful, but bene fi cial to patients and the public. As the government argued in the district court, “The se relators”—created as investment vehicles for fi nancial speculators—“should not be permi tt ed to indiscriminately advance claims on behalf of the government against an entire industry that would undermine ... practices the federal government has determined are ... appropriate and bene fi cial to federal healthcare programs and their bene fi ciaries.” This is not government irrationality. It oppresses no one and shocks no one’s conscience. 5

5 At the hearing, the government cited the following: Medicare and State Health Care Programs, HHS Final Rule, 81 Fed. Reg. 88,368 (Dec. 7, 2016);Special Fraud Alert, HHS Notice, 79 Fed. Reg. 40,115 (July 11, 2014); Medicare and State Health Care Programs, HHS Final Rule, 78 Fed. Reg. 79,20230 No. 19-2273

Accordingly, where the government’s conduct does not bump up against the Rules, the statute, or the Constitution, the notice and hearing under § 3730(c)(2)(A) serve no great purpose. But that will not be true in every case. Our reading of § 3730(c)(2)(A) does not render its process futile as a general

ma tt er. Rather, this particular relator simply had no substantive case to make at the hearing to which the statute entitled it. Whenever a party has the right to invoke the court’s aid, ithas the obligation to do so with at least a non-frivolous expectation of relief under the governing substantive law. Fed. R. Civ. P. 11(b). That is not alwa ys possible, but that does not make the right meaningless.
In any event, the danger that the § 3730(c)(2)(A) hearing may often serve li tt le purpose does not justify imposing on the government in each case the burden of satisfying Sequoia Orange ’s “two-step test” before the burden is put back on the relator to show unlawful executive conduct. 151 F.3d at 1145;
cf. United States v. Armstrong, 517 U.S. 456, 464 (1996) (“in the absence of clear evidence to the contrary,” courts presume regularity of prosecutorial deci sion-making). Nor does a Senate report on an unenacted ve rsion of the 1986 amendments frame a proper standard for § 3730(c)(2)(A) dismissals where Congress itself has supplied none in the enacted statute. See Swift, 318 F.3d at 253, discussing S. Rep. No. 99-345, at 26

(Dec. 27, 2013); OIG Advisory Op. No. 12-20, HHS, 2012 WL 7148096 (Dec. 12, 2012); OIG Advisory Op. No. 12-1 0, HHS, 2012 WL 4753657 (Aug. 23,2012); OIG Compliance Program Guidance for Pharmaceutical Manufacturers, HHS Notice, 68 Fed. Reg. 23,731 (May 5, 2003); OIG Advisory Op. No. 00-10, HHS, 2000 WL 35747420 (Dec. 15, 2000); Publication of OIG Special Fraud Alerts, HHS Notice, 59 Fed. Reg. 65,372 (Dec. 19, 1994); Medicare and State Health Care Programs, HHS Final Rule, 56 Fed. Reg. 35,952 (July 29, 1991).No. 19-2273 31

(1986). If Congress wishes to require some extra-constitutional minimum of fairness, reasonableness, or adequacy of the government’s decision unde r § 3730(c)(2)(A), it will need to say so. See § 3730(c)(2)(B).

Two fi nal ma tt ers relating to § 3730(c)(3). First, because wehave construed the government’s motion to dismiss as a motion to intervene and dismiss fo r both jurisdictional and merits purposes, it might be though t proper to remand the case for the district court to consider the government’s “good cause” to intervene under § 3730(c)(3). We see no need for a further hearing here because th e proper outcome is clear. In light of the government’s unrest ricted substantive right under Rule 41(a) and the absence of co untervailing factors, such as fairness to the relator or conservation of judicial resources (likely not factors in any case atan early enough stage for Rule 41(a)(1)(A)(i) to apply), we see no basis for denying intervention here. A denial would be anabuse of discretion, so we need not remand for that purpose. United States v. Ford , 627 F.2d 807, 811 (7th Cir. 1980).
Second, because § 3730(c)(3) inst ructs the district court not to “limit[] the status and rights ” of the relator when permitting the government to intervene, it might be argued that § 3730(c)(1) and (2) do not appl y when the government intervenes under § 3730(c)(3). Presumably in such cases the government would be treated as an ordinary Rule 24(b) intervenor-plainti ff with the same rights as the original plainti ff . See 7C Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1920 (3d ed. 1998 & supp. 2019). But intervention is already given to the government on basically identical terms under Rule 24(b)(2). Th ere is no need to construe § 3730(c)(3) so that it would add nothing. We fi nd it unlikely32 No. 19-2273

that Congress meant to introduce a new con fi guration of thegovernment-relator relationship (that is, as co-equal plainti ff s) in an ancillary provision without otherwise providing for its terms in § 3730(c). See Whitman v. American Trucking Ass’ns , 531 U.S. 457, 468 (2001) (Congress does not hide “elephants in mouseholes”). The be tt er reading is that § 3730(c)(3) instructs the district court not to limit the relator’s “status and rights” as they are de fi ned by §§ 3730(c)(1) and (2). Thus, the government cannot gain an advantage by intervening afterthe seal period; the relator cannot gain an advantage by engaging in gamesmanship or delay during the seal period.

The decision of the districtcourt is REVERSED and the case is REMANDED with instructions to enter judgment for the defendants on the relator’s claims under the False Claims Act, dismissing those claims with prejudice as to the relator and without prejudice as to the government.No. 19-2273 33

Appendix: 31 U.S.C. § 3730(b)–(c)
(b) Actions by Private Persons.—(1) A person may bring a civil action for a violation of section 3729 for the person and for the United States Government . The action shall be brought in the name of the Government . The action may be dismissed only if the court and the A tt orney General give wri tt en consent to the dismissal and th eir reasons for consenting.
(2) A copy of the complaint and wri tt en disclosure of substantially all material eviden ce and information the person possesses shall be served on the Government pursuant to Rule 4(d)(4) of the Federal Rules of Civil Procedure. The complaint shall be fi led in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders. The Government may elect to intervene and proceed with the action with in 60 days after it receivesboth the complaint and the material evidence and information. (3) The Government may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under parag raph (2). Any such motions may be supported by a ffi davits or other submissions in camera. The defendant shall not be required to respond to any complaint fi led under this section until 20 days after the complaint is unsealed and served upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure.
(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shall—
(A) proceed with the action, inwhich case the action shall be conducted by the Government; or34 No. 19-2273

(B) notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.
(5) When a person brings an action under this subsection, no person other than the Government may intervene or bringa related action based on the facts underlying the pending action. (c) Rights of the Parties to Qui Tam Actions.—(1) If the Government proceeds with the ac tion, it shall have the primary responsibility for prosecut ing the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (2).
(2)(A) The Government may di smiss the action notwithstanding the objections of the pe rson initiating the action if the person has been noti fi ed by the Government of the fi ling of the motion and the court has provided the person with an opportunity for a heari ng on the motion.
(B) The Government may se tt le the action with the defendant notwithstanding the objections of the person initiating the action if the court determines , after a hearing, that the proposed se tt lement is fair, adequate, and reasonable under all the circumstances. Upon a show ing of good cause, such hearing may be held in camera.
(C) Upon a showing by the Go vernment that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Government’s prosecution of th e case, or would be repetitious, irrelevant, or for purp oses of harassment, the courtNo. 19-2273 35

may, in its discretion, impose limitations on the person’s participation, such as—
(i) limiting the number of witnesses the person may call;
(ii) limiting the length of the testimony of such witnesses;
(iii) limiting the person’s cros s-examination of witnesses;

or (iv) otherwise limiting the part icipation by the person in the litigation.
(D) Upon a showing by the de fendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment orwould cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
(3) If the Government elects no t to proceed with the action,the person who initiated the action shall have the right to conduct the action. If the Government so requests, it shall be served with copies of all pleadings fi led in the action and shall be supplied with copies of all deposition transcripts (at theGovernment’s expense). When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Government to intervene at a later date upon a showing of good

cause. (4) Whether or not the Govern ment proceeds with the action, upon a showing by the Go vernment that certain actions of discovery by the person init iating the action would interfere with the Government’s investigation or prosecution of a criminal or civil ma tt er arising out of the same facts, the court36 No. 19-2273

may stay such discovery for a period of not more than 60 days. Such a showing shall be conducted in camera. The courtmay extend the 60-day period upon a further showing in camera that the Government has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
(5) Notwithstanding subsection (b), the Government may elect to pursue its claim throug h any alternate remedy available to the Government, includ ing any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the sa me rights in such proceeding as such person would have had if the action had continued under this section. Any fi nding of fact or conclusion of law made in such other proc eeding that has become fi nal shall be conclusive on all parties to an action under this section. For purposes of the preceding sentence, a fi nding or conclusion is
fi nal if it has been fi nally determined on appeal to the appropriate court of the United States, if all time for fi ling such an appeal with respect to the fi nding or conclusion has expired, or if the fi nding or conclusion is not subject to judicial review.No. 19-2273 37

S CUDDER , Circuit Judge , concurring in the judgment. I agree with the majority’s analysis of the jurisdictional question and bottom-line conclusion. But because I prefer to decide the government’s challenge to the di strict court’s denial of its motion to dismiss on narrower grounds, I concur in the judgment.
The majority opinion rightly observes that Section 3730(c)(2)(A) of the False Claim Ac t is an odd provision. It is strange to grant the government broad dismissal authority but then condition any dismissal on the district court holding a hearing (to allow a relator to voice objections) that leads to no judicial review. The oddity of that outcome contributes to the difficulty of landing on the right answer to the question of statutory construction analyzed in depth in the majority opinion. What I am more confident saying is that this appeal does not require us to answer the question. We can (and should) resolve this case without deci ding whether the D.C. Circuit got it right in holding that Section 3730(c)(2)(A) confers unfettered discretion upon the government to dismiss a qui
tam action or instead whether the Ninth Circuit has the better end of the reasoning in requiring a dismissal decision to survive rational basis review. Compare Swift v. United States

, 318 F.3d 250 (D.C. Cir. 2003), with United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp. , 151 F.3d 1139 (9th Cir. 1998). Even under the Ninth Circuit’s standard, the government’s dismissal request easily satisfied rational basis review, and the district court committed error concluding otherwise. See FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 314– 15 (1993) (underscoring that the rational basis standard requires “a paradigm of judici al restraint” and indeed ruling38
No. 19-2273 out “every conceivable basis” otherwise supporting the challenged measure).
I would stop there. While the majority opinion contains a sophisticated discussion of whether principles of constitutional avoidance should pl ay any role in a question of statutory interpretation under the False Claims Act, I would rather confront that question in a case where the outcome hinged on the answer. In my respectful view, the narrower ground is the best ground to stand on to resolve this appeal.