United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2021 Decided July 20, 2021

No. 20-7062

UNITED STATES OF AMERICA,

EX REL. ELIZABETH W. KENNEDY, ET AL.,

PLAINTIFF-APPELLEES

AND

ELIZABETH W. KENNEDY,

PLAINTIFF-APPELLANT

v.

NOVO A/S, ET AL.,

DEFENDANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01529)

Nicolas F. Mendoza argued the cause for appellant. With 

him on the briefs were Ann Lugbill, Michael T. Anderson, Mark 

Hanna, Joel M. Androphy, and Sarah Frazier.

Andrea Gold was on the brief for amicus curiae Taxpayers 

Against Fraud Education Fund in support of appellant.
2

Karen Schoen, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With her on the brief were Brian 

M. Boynton, Acting Assistant Attorney General, and Charles 

W. Scarborough, Attorney.

Before: MILLETT, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: The False Claims Act authorizes 

the federal government to obtain treble damages for false and 

fraudulent claims for money or property that are submitted to 

it. 31 U.S.C. § 3729(a)(1). The Act also authorizes private 

persons to help obtain such recoveries for the government by 

filing qui tam lawsuits against those who engaged in such false 

or fraudulent behavior. Id. § 3730(b). If successful, those 

private plaintiffs receive a share of the damages awarded. Id. 

§ 3730(d). 

Yet the same misconduct that underlies false and 

fraudulent claims may also run afoul of other federal statutes

for different reasons. As a result, the government may 

sometimes choose to pursue relief under the False Claims Act. 

Other times, on the same set of facts, it might prioritize the 

enforcement of a different law. Still other times, it might do 

both.

The question in this case is whether a private plaintiff who 

has filed a False Claims Act case is also entitled to a share of 

the monetary relief that the government obtains in its own 

separate enforcement action just because the underlying facts 

are similar to those in the earlier-filed qui tam lawsuit. The 

answer is No. The plain text of the False Claims Act confines

qui tam plaintiffs to recoveries only for claims seeking relief

based on the type of fraud or falsehoods covered by that statute. 
3

The government’s separate enforcement action in this case did 

not involve the type of claim cognizable under the False Claims 

Act, nor did it allege a false or fraudulent effort to obtain money 

or property from the United States. In addition, the qui tam 

plaintiff, Elizabeth Kennedy, received an agreed-upon False 

Claims Act payment with knowledge of the government’s 

separate action. So she is not entitled to any further recovery. 

I

A

The False Claims Act, 31 U.S.C. § 3729 et seq., broadly 

makes individuals liable for a civil penalty and treble damages 

if they submit “[f]alse claims” to the federal government 

concerning money or property. More specifically, the False 

Claims Act prohibits individuals from (i) knowingly presenting

to the federal government a false or fraudulent claim for 

payment, (ii) knowingly making or using a false statement 

material to a false or fraudulent claim, (iii) knowingly failing

to deliver money or property that is to be used by the federal 

government, (iv) knowingly buying or receiving public 

property from an unauthorized government worker in payment 

of a debt or obligation, (v) knowingly making or using a false 

record or otherwise improperly avoiding or decreasing a debt 

or obligation owed to the government, (vi) making or 

delivering a document that certifies the receipt of property for 

governmental use without knowledge that the information in 

the receipt is true and with the intent to defraud the 

government, or (vii) conspiring to violate any of the preceding 

provisions. 31 U.S.C. § 3729(a)(1).

Under Section 3729, a false “claim” means “any request 

or demand * * * for money or property” in which the United 

States has a legal interest that is either “presented to an officer, 

employee, or agent of the United States” or is “made to a 
4

contractor, grantee, or other recipient” who has authority to use 

that money or property on the government’s behalf. See 31 

U.S.C. § 3729(b)(2).

Section 3730 then authorizes the Attorney General to bring 

“[c]ivil actions for false claims” for any violation of those 

Section 3729 prohibitions. 31 U.S.C. § 3730(a) (bold omitted).

To strengthen enforcement and to protect taxpayers’ 

money, the False Claims Act also authorizes private persons to 

bring civil qui tam lawsuits in the name of the United States for 

violations of Section 3729’s prohibitions. 31 U.S.C. 

§ 3730(b)(1).

1

 When suing in the name of the United States, 

those private plaintiffs are referred to as “relators.” Vermont 

Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 

765, 769 (2000). If a False Claims Act suit is successful, the 

relator may receive up to 30% of the damages recovered, as 

well as reasonable attorneys’ fees and costs. 31 U.S.C. 

§ 3730(d)(1) & (2).

Since Congress amended the False Claims Act in 1986, qui 

tam suits under Section 3730 have saved the government over 

$45 billion. See DEPARTMENT OF JUSTICE, FRAUD 

STATISTICS—OVERVIEW: OCTOBER 1, 1986–SEPTEMBER 30,

2019, at 3 (Jan. 21, 2020), https://www.justice.gov/opa/pressrelease/file/1233201/download (last accessed July 19, 2021); 

see also False Claims Amendment Act of 1986, Pub. L. No. 

99-562, 100 Stat. 3153.

A relator must initially file her False Claims Act lawsuit in 

camera and under seal and serve the government with a copy 

of the complaint, along with any material information or 

1 The False Claims Act imposes a number of limitations on who 

may qualify as a qui tam plaintiff, but they are not at issue in this 

case. See 31 U.S.C. § 3730(e).
5

evidence in her possession. 31 U.S.C. § 3730(b)(2). The 

statute then affords the federal government at least 60 days to 

investigate the claims. Id. After the time for its review ends, 

the government must either intervene and assume primary 

responsibility for prosecuting the action, id. § 3730(c)(1), or 

“notify the court that it declines to take over the action,” id.

§ 3730(b)(4)(B). If the government chooses not to intervene, 

then the relator litigates the action herself. Id. § 3730(c)(3).2

 

Subsection 3730(c)(5) of the statute separately allows the 

government to “pursue its claim” through an “alternate 

remedy” if it does not wish to press an action under the False 

Claims Act. As relevant here, that subsection provides:

Notwithstanding subsection (b), the 

Government may elect to pursue its claim 

through any alternate remedy available to the 

Government, including 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 same rights in such 

proceeding as such person would have had if the 

action had continued under this section.

31 U.S.C. § 3730(c)(5). 

2 The government may choose to intervene in the case later, but 

its delay may deprive it of the opportunity to oversee the lawsuit. 31 

U.S.C. § 3730(c)(3).
6

B

1

In January 2009, Elizabeth Kennedy began working for 

Novo Nordisk, a pharmaceutical company, as a sales 

representative. False Claims Act Complaint ¶ 4, United States 

ex rel. Kennedy v. Novo Nordisk Inc., No. 13-cv-01529-RBW 

(D.D.C. Oct. 15, 2010), ECF No. 1, J.A. 26–27. Kennedy was 

tasked with helping to promote Novo Nordisk’s new diabetes 

drug, Victoza. Id. Victoza was designed to improve “glycemic 

control”—that is, maintain safe levels of blood sugar—in 

adults with type-2 diabetes.

The Food and Drug Administration’s approval of Victoza 

for sale in 2010 came with specific conditions. 

First, the drug had to be labeled with a warning that its use 

created an “unknown risk” of contracting a specific type of 

thyroid cancer.

Second, Novo Nordisk had to maintain a “Risk Evaluation 

and Mitigation Strategy” for Victoza. The point of that strategy 

was to warn healthcare providers about the possible risk of 

thyroid cancer so that providers could monitor their patients 

appropriately.

3

Third, Novo Nordisk was not allowed to promote the drug 

for use by adults with type-2 diabetes.

3 The Secretary of Health and Human Services may impose a 

Risk Evaluation and Mitigation Strategy when doing so “is necessary 

to ensure that the benefits of the drug outweigh the risks of the 

drug[.]” 21 U.S.C. § 355–1(a)(1).
7

According to the allegations in Kennedy’s complaint, in 

the lead-up to Victoza’s commercial launch, Kennedy’s 

supervisors directed her to market the drug in ways that ran 

afoul of those FDA limitations. False Claims Act Complaint 

¶ 98, Kennedy, No. 13-cv-01529-RBW (D.D.C. Oct. 15, 2010), 

ECF No. 1 (“Kennedy was directed at the launch meeting, at 

district meetings, and in ride-a-longs with her manager, to 

make a number of off-label claims about Victoza.”), J.A. 63. 

Kennedy alleged that, among other violations, Novo Nordisk 

marketed the drug for use by pre-diabetics, who outnumber 

patients with diabetes two to one in the United States 

According to Kennedy’s allegations, selling Victoza as a 

treatment to pre-diabetics could potentially triple the market for 

the drug. Id. ¶ 105. The problem was that the FDA had not 

approved Victoza for the treatment of pre-diabetics. J.A. 573

¶ 11.

Kennedy also alleged that Novo Nordisk instructed sales 

representatives not to mention the “unknown risk” of thyroid 

cancer to doctors. False Claims Act Complaint ¶ 117, 

Kennedy, No. 13-cv-01529-RBW (D.D.C. Oct. 15, 2010), ECF 

No. 1, J.A. 70. In fact, according to her complaint (and to Novo 

Nordisk’s own admissions), “Novo Nordisk trained sales 

representatives to downplay these safety issues and side 

effects * * * during calls with doctors.” Id. ¶ 119, J.A. 71; see 

also J.A. 438 ¶ (D)(1)–(5) (Novo Nordisk admitting that it 

“trained its sales representatives that * * * they were permitted 

to inform physicians that there were no cases of [thyroid 

cancer] in the clinical trials for Victoza[,]” and that certain 

Novo Nordisk sales representatives “suggested to or told 

prescribers that * * * Victoza[] only posed a risk of [thyroid 

cancer] to rats or rodents and posed no risk to humans.”).
8

2

Armed with this information, Kennedy filed a False 

Claims Act complaint in the United States District Court for 

the Southern District of Texas in October 2010. Kennedy 

alleged, among other things, that Novo Nordisk had violated 

the False Claims Act by causing people to submit to the federal 

government millions of dollars in false claims for payment 

under federal health care programs like Medicare and 

Medicaid. False Claims Act Complaint ¶¶ 164–165, Kennedy, 

No. 13-cv-01529-RBW (D.D.C. Oct. 15, 2010), ECF No. 1

(Kennedy alleged that Novo Nordisk made millions of dollars 

by selling Victoza to “Medicaid, Medicare, 

CHAMPUS/TRICARE, CHAMPVA, Federal Employees 

Health Benefit Plan, and other federal healthcare program 

patients[.]”), J.A. 85–86; id. ¶ 171, J.A. 88. Other relators 

across the country subsequently filed similar lawsuits. All of 

those qui tam cases were then transferred to and consolidated 

in the United States District Court for the District of Columbia. 

In July 2017, the United States filed a formal notice of 

intervention in the district court. In the notice, the government 

advised that the United States, Novo Nordisk, and Kennedy 

had reached a settlement in the case in which Novo Nordisk 

agreed to pay $46.5 million to resolve the matter. J.A. 352, 406

¶ 1. 

The United States explained that it was intervening only 

“as to the Covered Conduct as that term is defined in Paragraph 

K of the Settlement Agreement, to the extent that the 

Complaint contains such claims.” J.A. 352. That covered 

conduct was (i) Novo Nordisk’s training of its sales 

representatives to imply that the “risk message was erroneous, 

irrelevant, or unimportant,” J.A. 404, and (ii) Novo Nordisk’s 

knowing promotion of Victoza for sale to and use by adults 
9

who did not yet have type-2 diabetes, J.A. 405. The district 

court subsequently approved the voluntary dismissal of 

Kennedy’s remaining False Claims Act claims. See False 

Claims Act Complaint ¶¶ 185–190, Kennedy, No. 13-cv01529-RBW (D.D.C. Oct. 15, 2010), ECF No. 1 (alleging 

conspiracy and retaliation claims under the Act), J.A. 91–92.

Four days later, the government filed in the same court a 

separate complaint against Novo Nordisk. This case pressed 

claims not under the False Claims Act, but under the Food, 

Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq.

J.A. 571 ¶ 1. The government alleged that Novo Nordisk 

introduced Victoza into interstate commerce as an unlawfully

“misbranded” drug because it “failed to comply with the 

Victoza Risk Evaluation and Mitigation Strategy[.]” J.A. 571 

¶ 1 (citing 21 U.S.C. § 331). The government accused Novo 

Nordisk of providing its sales force with “certain messages and 

tactics” that created the “false or misleading impression” that 

the warning about thyroid cancer on Victoza’s label was 

“erroneous, irrelevant, or unimportant.” J.A. 571–572 ¶ 1. 

The government sought “an equitable disgorgement of 

$12,150,000[.]” J.A. 578 ¶ 28(a).

At the same time that it filed the complaint, the 

government disclosed that it had already settled the FDCA 

claims with Novo Nordisk. As part of the FDCA Settlement, 

Novo Nordisk admitted that it had trained its employees to 

undermine the Risk Evaluation and Mitigation Strategy. 

J.A. 438. Novo Nordisk also agreed to pay the government 

$12,150,000. Although the government entered into the FDCA 

Settlement only a few days after the False Claims Act 

Settlement, Kennedy was not a party to the FDCA litigation or 

to its settlement. At the government’s request, the district court 

dismissed the FDCA case shortly thereafter. 
10

3

Following those settlements, Kennedy filed a motion 

claiming that, as a qui tam relator, she was entitled to a fair 

share of the False Claims Act settlement. Relator Kennedy’s 

Motion for Immediate Award of Relator’s Share, United States 

ex rel. Kennedy v. Novo A/S, No. 13-cv-01529-RBW (D.D.C. 

Oct. 27, 2017), ECF No. 96. Kennedy also mentioned in a 

footnote that, as a relator, she believed that she had a right to a 

share of the FDCA Settlement as well. Id. at 5 n.6.

Twenty months later, Kennedy separately moved the 

district court to award her a share of the FDCA Settlement. 

Relator Kennedy’s Motion for Relator’s Share of Award, 

United States ex rel. Kennedy v. Novo A/S, No. 13-cv-01529-

RBW (D.D.C. June 12, 2019), ECF No. 116. Kennedy argued 

that the FDCA Settlement was an “alternate remedy” under the 

False Claims Act, 31 U.S.C. § 3730(c)(5), and so she was 

statutorily entitled to a share of that recovery too. Relator 

Kennedy’s Motion for Relator’s Share of Award at 9, United 

States ex rel. Kennedy v. Novo A/S, No. 13-cv-01529-RBW 

(D.D.C. June 12, 2019), ECF No. 116. 

In May 2020, the district court agreed with Kennedy that 

she was entitled to a relator’s share of the False Claims Act 

settlement.4 The court awarded her 18% of the recovery, which 

4 None of the other relators who had filed qui tam suits in other 

courts were awarded any share of the federal recovery because 

Kennedy’s suit was the first in time. See United States ex rel. 

Ferrara v. Novo Nordisk, Inc., Nos. 11-cv-74, 11-cv-1596, 11-cv1662, 13-cv-221, 13-cv-1529, 17-cv-791, 2019 WL 4305503, at *3

(D.D.C. Sept. 11, 2019); see also 31 U.S.C. § 3730(e)(4)(A) (“The 

court shall dismiss an action or claim under this section [3730]” if 

the allegations are publicly disclosed, “unless the action is brought 
11

was roughly $7.8 million plus interest. Kennedy Br. 24 n.4; 

Gov’t Br. 27–28. But the court denied her request for a share 

of the FDCA Settlement proceeds. United States ex rel. 

Kennedy v. Novo A/S, No. 13-cv-01529-RBW, 2020 WL 

2552947, at *7 (D.D.C. May 19, 2020). Following similar

decisions of the Third, Sixth, and Ninth Circuits, the district 

court ruled that Kennedy could not recover any share of the 

government’s FDCA Settlement because the government had 

intervened in her False Claims Act lawsuit. Id. (citing United 

States ex rel. Bledsoe v. Community Health Sys., Inc., 342 F.3d 

634, 649 (6th Cir. 2003); United States ex rel. Barajas v. 

United States, 258 F.3d 1004, 1010 (9th Cir. 2001); United 

States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 

739 (3d Cir. 1997)).

Kennedy filed a timely notice of appeal. 

II

The district court had federal subject-matter jurisdiction 

under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. 

§ 1291.

The meaning of the False Claims Act’s provision 

governing alternate remedies is a question of statutory 

construction that we review de novo. See Allegheny Defense

Project v. FERC, 964 F.3d 1, 11 (D.C. Cir. 2020).

III

The question in this case is whether the government’s 

FDCA lawsuit against and settlement with Novo Nordisk was 

an “alternate remedy,” within the meaning of the False Claims 

by the Attorney General or the person bringing the action is an 

original source of the information.”).
12

Act, 31 U.S.C. § 3730(c)(5), from which Kennedy was entitled

to receive a relator’s share of the settlement, or whether it was 

instead an independent action outside of 

subsection 3730(c)(5)’s compass. In other words, what types 

of governmental enforcement actions count as an “alternate 

remedy” and which do not? We hold that, regardless of the 

government’s decision to intervene in the False Claims Act 

litigation, the FDCA Settlement was not an “alternate remedy” 

because it did not involve the type of claim covered by the 

False Claims Act. 

A

In deciding whether the False Claims Act’s alternateremedy provision applies to the government’s FDCA lawsuit

and settlement, we begin and end with the plain text of the False 

Claims Act, because its terms confine the qui tam relator to 

recoveries arising from the type of fraud claims that could have 

been brought in a qui tam action under the False Claims Act. 

By way of reminder, the alternate-remedy provision of the 

False Claims Act provides in relevant part:

Notwithstanding subsection (b), the 

Government may elect to pursue its claim 

through any alternate remedy available to the 

Government, including any administrative 

proceeding to determine a civil money penalty. 

If any such alternate remedy is pursued in 

another proceeding, the person initiating the 

[False Claims Act] action shall have the same 

rights in such proceeding as such person would 

have had if the action had continued under this 

section.

31 U.S.C. § 3730(c)(5).
13

In three ways, that statutory text allows a relator to recover 

a share only when the claim pursued in the alternate remedy is 

of the type that could have been pressed under the False Claims 

Act. 

First, while subsection 3730(c)(5) does not define 

alternate remedy, the opening clause “[n]otwithstanding 

subsection (b)” signifies that the alternate remedy is an 

alternative that the government can choose instead of its

intervention, participation, and pursuit of a remedy in a private 

qui tam lawsuit—the subject of subsection (b). After all, an 

“alternate” remedy must be in place of something else. That is, 

there must be a default choice for which the alternate remedy 

is a different option. 

Here, the “notwithstanding” clause tells us that the default 

choice is the remedy the government could have pursued under 

the qui tam provision of the False Claims Act. 

Section 3730(c)(5), in other words, gives the government 

options for resolving the types of false and fraudulent claims 

that are the raison d’etre of the False Claims Act, 31 U.S.C. 

§ 3729. See S. REP. NO. 345, 99th Cong., 2d Sess. at 1 (1986)

(The purpose of the False Claims Act is to “enhance the 

Government’s ability to recover losses sustained as a result of 

fraud against the Government.”); United States ex rel. Totten v. 

Bombardier Corp., 286 F.3d 542, 546 (D.C. Cir. 2002) (“The 

statute’s qui tam provision is a powerful tool that augments the 

government’s limited enforcement resources by creating a 

strong financial incentive for private citizens to guard against 

efforts to defraud the public fisc.”).

5

5 The meaning of an “alternate” remedy as an alternative to an 

already identified remedy seems well within the public ken, and in 

fact is not disputed by Kennedy. But if dictionary definitions from 
14

Second, to understand when subsection 3730(c)(5)

applies, one has to ask: “Alternate remedy for what?”

Again, the statutory text answers that question: The 

alternate remedy must be used to pursue the government’s 

“claim.” 31 U.S.C. § 3730(c)(5). Within the context of legal 

proceedings, which is what Section 3730 addresses, a “claim” 

is a “[c]ause of action,” and the “[m]eans by or through which 

[a] claimant obtains possession or enjoyment of [a] privilege or 

thing.” Claim, BLACK’S LAW DICTIONARY 224 (5th ed. 1979). 

But subsection 3730(c)(5) does not refer to just any legal

claim or cause of action that the government has. The statute 

does not, for example, say that the relator can recover if the 

government pursues any alternate cause of action. Instead, the 

remedy is tied to the single referenced “claim.” 31 U.S.C. 

§ 3730(c)(5). That claim is only the one that otherwise could 

be prosecuted through a qui tam suit under subsection 3730(b) 

of the False Claims Act. It is for those specified claims of 

falsity or fraud that Congress felt a need to give express 

permission for the government to pursue alternative recourse

“notwithstanding” a relator’s initiation of a qui tam lawsuit 

under “subsection (b).” Id.

the time of enactment are desired, see Alternate, RANDOM HOUSE 

UNABRIDGED DICTIONARY 61 (defs. 11 & 12) (2d ed. 1993) 

(defining “alternate” as “constituting an alternative” and “alternative 

(defs. 4, 6)”); Alternative, id. (defs. 4 & 6) (defining “alternative” as 

“affording a choice of two or more things, propositions, or courses 

of action” and “employing or following nontraditional or 

unconventional ideas, methods, etc.”); see also WEBSTER’S NEW 

INT’L DICTIONARY 63 (def. 1-5) (3d ed. 1981) (defining “alternate” 

as an “alternative” or “substitute”).
15

More specifically, the legal claims that the False Claims 

Act vests in the government are for “violation[s] under 

section 3729.” 31 U.S.C. § 3730(a). Section 3729, in turn, 

spells out seven grounds of liability based on the use of falsity 

or fraud to obtain money or property in which the United States 

has a legal interest. Id. § 3729(a)(1)(A), (B), (C), (D), (E), (F) 

& (G). The statute is all about those species of false and 

fraudulent claims. Id. § 3729 (entitled “False claims”); id.

§ 3730 (entitled “Civil actions for false claims”); False Claims 

Amendments Act of 1986, Pub. L. No. 99-562, § 2, 100 Stat.

3153, 3153 (1986). And those claims are the only type for 

which the statute authorizes a qui tam lawsuit. 31 U.S.C. 

§ 3730(b)(1) (qui tam plaintiff “may bring a civil action for a 

violation of section 3729”) (emphasis added).

All of that is a long way of saying that Section 3730’s 

alternate-remedy provision authorizes the government, when 

confronted with a qui tam complaint, to choose to vindicate its 

legal claim arising from the fraud and falsity that Section 3729 

proscribes through either (i) the qui tam action, or (ii) an 

alternate remedy for that same type of false or fraudulent claim. 

31 U.S.C. § 3730(a), (b) & (c)(5). 

Reading “claim” in subsection 3730(c)(5) as referring to 

the types of falsity and fraud that the False Claims Act 

identifies is not just textually compelled; it is commonsensical. 

Why would Congress need to expressly authorize the use of 

alternative legal remedies for a claim unless it is the same type 

of claim that the statute otherwise addresses and remediates? 

Third, subsection 3730(c)(5) provides that, if the 

government pursues an alternate remedy, the relator “shall 

have the same rights in such proceeding as” she “would have 

had if the action had continued under this section.” 31 U.S.C.

§ 3730(c)(5). That means that the type of claim the 
16

government pursues through the alternate remedy must be the 

same type of claim that a relator could have initiated and 

“continued” through a qui tam False Claims Act suit. Id. After 

all, those are the only types of claims that give rise to “rights” 

for qui tam relators and the only claims that relators can pursue 

through “action[s] * * * under this section”—that is, the False 

Claims Act cause of action. Id. (indicating that the action must 

have been able to “continue[] under [Section 3730],” which 

prescribes the rules for civil actions for false claims). 

In short, from every angle, the text of the alternate-remedy 

provision establishes that the alternative remedial proceedings 

from which a relator can recover a share must redress the same

type of falsity and fraud claims that otherwise could be pursued 

by a private relator’s qui tam lawsuit under the False Claims 

Act. That could include, for example, an administrative 

proceeding for the remediation of false or fraudulent money 

claims. See 31 U.S.C. § 3730(c)(5).

By the same token, if the alternate proceeding seeks 

recompense for some other type of claim that the relator could 

not have brought, then the proceeding is not covered by 

subsection 3730(c)(5) because it is not “alternate” to the False 

Claims Act qui tam remedy. It is a different legal claim 

altogether, arising beyond the False Claims Act’s borders.

6

 

6 Given the statutory text and structure, we doubt that the district 

court was correct in holding that the permissibility of an alternate 

remedy recovery turns on the government’s intervention decision. 

See United States v. L-3 Communications EOTech, Inc., 921 F.3d 1, 

26–27 (2d Cir. 2019). So we exercise our prerogative to affirm on 

another ground. See United States ex rel. Heath v. AT&T, Inc., 719 

F.3d 112, 123 (D.C. Cir. 2015).
17

B

1

Given subsection 3730(c)(5)’s text, the alternate-remedy 

provision forecloses Kennedy’s argument that she is also 

entitled to a share of the FDCA Settlement.

In the FDCA lawsuit, the government charged Novo 

Nordisk with misbranding its drug in violation of the Food, 

Drug, and Cosmetic Act, 21 U.S.C. § 352(y), and shipping that 

misbranded drug in interstate commerce in violation of 21 

U.S.C. § 331. See FDCA Complaint ¶ 1, United States v. Novo 

Nordisk Inc., No. 17-cv-01820-RBW (D.D.C. Sept. 5, 2017), 

ECF No. 1 (alleging that the defendant received “ill-gotten 

gains” because it “introduced Victoza into interstate commerce 

while such drug was misbranded”), J.A. 571. But misbranding 

bears little resemblance to the types of fraudulent behavior that 

the False Claims Act identifies and proscribes. See 31 U.S.C. 

§ 3729(a)(1). 

Most critically, a misbranding claim seeks to protect the 

public from being misled by the drug company’s marketing 

tactics. And it does so by pursuing equitable relief and 

penalties or fines. See 21 U.S.C. § 333 (defining civil and 

criminal penalties for violations of Section 331); id. § 355a 

(allowing debarment as a punishment for individuals convicted 

of federal felonies related to abbreviated new drug 

applications); cf. United States v. Rx Depot, Inc., 438 F.3d 

1052, 1062 (10th Cir. 2006) (restitution under the FDCA is

different from traditional damages because it is “directly 

traceable to * * * illegal conduct and the harm it caused 

consumers” rather than the United States itself) (emphasis 

added). 
18

So a misbranding claim does not seek to recover damages 

for any use of falsity or fraud to deprive the government of its 

money or property, which is the hallmark of a claim litigable 

under the False Claims Act. 21 U.S.C. § 333; see FDCA

Complaint, Novo Nordisk, No. 17-cv-01820 (D.D.C. Sept. 5, 

2017), ECF No. 1 (no allegation that Novo Nordisk used falsity 

or fraud in submitting claims to the government or otherwise 

to obtain money or property in which the government held a 

legal interest), J.A. 571–579.

That means that the FDCA Settlement did not resolve the 

type of claim that could have been litigated under the False 

Claims Act. Kennedy agrees. She admits that she would never 

have been able to bring a qui tam lawsuit against Novo Nordisk 

for misbranding. Oral Argument Tr. at 9:23–10:1, United 

States ex rel. Kennedy v. Novo A/S, No. 20-7062 (D.C. Cir. 

May 24, 2021), ECF No. 1899779. Nor is the misbranding 

lawsuit the type of action that could have been initiated by a 

qui tam relator, let alone “continued[,]” under subsection 

3730(b) of the False Claims Act. Yet that is a prerequisite for

obtaining a relator’s share under the alternate-remedy 

provision. 31 U.S.C. § 3730(c)(5).

2

Kennedy argues that she nevertheless is entitled to recover 

under subsection 3730(c)(5) because the FDCA claim arose 

from the same underlying facts identified in her qui tam 

lawsuit. 

The problem is that Congress wrote a different statute than 

the one that Kennedy envisions. Congress provided for the 

relator to share in the recovery if and when the government 

pursues an “alternate remedy” specifically for a false or 

fraudulent taking of governmental money or property. 31 

U.S.C. § 3730(c)(5). The statute does not reward relators any 
19

time the government pursues any “alternate claim or cause of 

action” arising from the same facts and circumstances. In other 

words, it is the nature of the legal claim—the fraudulent or false 

deprivation of a monetary or property interest—and not the 

commonality of facts that determines a relator’s right to share 

in an alternative recovery. 

To that same point, if Congress had wanted the relator’s 

recovery for an alternate remedy to turn on whether the 

government’s action arose out of the same facts, it would have 

used the language that it employed in the immediately 

preceding subsection. Subsection 3730(c)(4) addresses 

discovery matters when the government prosecutes “a criminal 

or civil matter arising out of the same facts[.]” 31 U.S.C. 

§ 3730(c)(4). But Congress did not draw that same line in 

subsection 3730(c)(5). Instead, Congress changed course and 

tied the relator’s recovery of an alternate remedy to the nature 

of the claim pursued by the government, not to the facts from 

which the claim arose. That is a textual distinction that makes 

a difference. Salinas v. United States R.R. Retirement Board, 

141 S. Ct. 691, 698 (2021) (“Where Congress includes 

particular language in one section of a statute but omits it in 

another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate 

inclusion or exclusion.”) (quoting Russello v. United States, 

464 U.S. 16, 23 (1983)).

Kennedy’s proposed reading of the statute also overlooks 

that the “claim” pursued through an alternate remedy must be 

one that could have continued instead under the False Claims 

Act. 31 U.S.C. § 3730(c)(5). The misbranding claim plainly 

could not have. So Kennedy’s atextual focus on just the 

underlying facts would vastly expand a relator’s right to 

recover beyond the type of injury that the False Claims Act 

addresses.
20

Neither of the cases on which Kennedy relies for her 

“factual overlap” theory works. See Kennedy Br. 19 (citing 

Rille v. PricewaterhouseCoopers LLP, 803 F.3d 368, 373–374

(8th Cir. 2015) (en banc); Bledsoe, 342 F.3d at 650–651). Both 

cases state only that factual overlap is necessary for an 

alternative proceeding to be an “alternate remedy” within the 

meaning of subsection 3730(c)(5). See Rille, 803 F.3d at 373; 

Bledsoe, 342 F.3d at 649. But neither case holds that factual 

overlap alone is sufficient to allow a relator to share in the 

recovery. 

To be sure, factual similarity can be important. It can, for 

example, ensure that the claim for which recovery is sought is 

one that the relator herself actually brought to the government’s 

attention. 31 U.S.C. § 3730(e)(4)(A). And common facts may, 

for claim preclusion reasons, sometimes make it difficult for 

the government to pursue an alternate remedy after intervening 

in the qui tam lawsuit. But for present purposes, that is neither 

here nor there. The issue in this case is not what the 

government can do, but whether and when a relator may share 

in the proceeds after the government has successfully obtained 

a recovery through an alternative proceeding. Factual 

symmetry alone is not enough to seal that deal.

3

Kennedy also worries that resting a relator’s right to 

recover under the alternate-remedy provision on the character 

of the claim rather than the similarity of the underlying facts 

will allow the government to reap all the benefit of the relator’s 

work and yet avoid compensating her as the False Claims Act 

contemplates. 

But the False Claims Act has built-in mechanisms to 

protect against such abuse. Most relevantly, a relator can 

object to the government’s settlement of its False Claims Act 
21

qui tam suit. 31 U.S.C. § 3730(c)(2)(B). If the relator raises 

an objection to the settlement, the district court must determine, 

after first holding a hearing, whether “the proposed settlement 

is fair, adequate, and reasonable under all the circumstances[.]” 

Id.

In any event, this case does not implicate Kennedy’s 

concern. Kennedy received an 18% share (approximately $7.8 

million) of the False Claims Act settlement. And importantly, 

Kennedy never objected to the fairness of her settlement even 

though the government gave her advance notice of its separate 

settlement under the Food, Drug, and Cosmetic Act. See

J.A. 447–448 ¶¶ 9, 12–14; see also Oral Argument Tr. at 

34:21–22, Kennedy, No. 20-7062 (D.C. Cir. May 24, 2021), 

ECF No. 1899779. If Kennedy had feared that she would be

short-changed, she could have raised that concern in a motion 

prior to the district court’s dismissal of her qui tam action. 

Given all of that, we have no occasion to decide in this 

case what the consequences (if any) would be were the 

government to use a relator’s information in a separate 

proceeding without fairly compensating the relator in the qui 

tam litigation, or what would happen if the government failed 

to disclose the existence of such a separate proceeding to the 

relator and the district court before the district court approves 

settlement of the action as fair, adequate, and reasonable. For 

purposes of the case before us, it suffices to say that the claim 

pursued by the government through an alternate remedy here 

was not of the type that Kennedy could ever have pursued in a 

False Claims Act qui tam action and that no claim of 

governmental manipulation has been raised. 

IV

Subsection 3730(c)(5) limits a relator’s recovery from an 

alternate remedy pursued by the government to those types of 
22

false or fraudulent claims that the False Claims Act recognizes 

and for which a qui tam action could have been litigated. For 

that reason, we affirm the judgment of the district court

declining to disburse to Kennedy a share of the FDCA 

settlement. 

So ordered.