Riley v. St. Luke's Episcopal Hospital

196 F.3d 514, 1999 U.S. App. LEXIS 30391, 1999 WL 1034213

Opinions

JERRY E. SMITH, Circuit Judge:

Joyce Riley appeals the dismissal, for want of jurisdiction, of her action for damages under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. While we conclude, based on intervening circuit caselaw, that the district court did have jurisdiction, we also determine that Riley may not maintain her suit, for the provisions of the FCA under which she sued violate the Take Care Clause of Article II of the Constitution. Accordingly, we affirm the dismissal.

*

I.

Riley, a former nurse in the heart transplant unit of St. Luke’s Episcopal Hospital (“St. Luke’s”), sued eight defendants: St. Luke’s, Baylor College of Medicine, the University of Texas Health Science Center at Houston, the Texas Heart Institute, Surgical Associates of Texas, Doctors Edward Massin and O. Howard Frazier, and Branislav Radovancevic. Riley alleges that these defendants violated the FCA by defrauding and conspiring to defraud the United States Treasury.¹

Riley brought her suit under the qui tom provisions of the FCA, which allow individual citizens to sue for fraud on behalf of the government and collect part of the government’s recovery. Pursuant to the procedures established in the qui tam provisions, see 31 U.S.C. § 3730(b)(2), Riley filed a preliminary statement under seal, which the United States reviewed at length. The government eventually decided not to intervene under 31 U.S.C. § 3730(b)(4)(B), so Riley proceeded in the district court on her own.

After Riley filed her original complaint, the defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court denied each motion but requested additional briefing to address Riley’s standing under Article III of the United States Constitution. Riley, the University of Texas Health Science Center at Houston, and the United States as intervenor for the limited purpose of defending the FCA’s constitutionality, briefed the standing issue. Riley then filed a second amended complaint, which was met with another round of motions to dismiss. Among the grounds for dismissal was an assertion by the University of Texas Health Science Center at Houston that the Eleventh Amendment bars Riley from suing it, because it is an arm of the state. See U.S. Const. amend. XI.

In a scholarly and persuasive opinion, the district court dismissed Riley’s claims on jurisdictional grounds, concluding that she had suffered no injury-in-fact and therefore lacked standing to sue. See US. ex rel. Riley v. St. Luke’s Episcopal Hosp., 982 F.Supp. 1261, 1263-69 (S.D.Tex.1997) (Hoyt, J.). Because the court dismissed on standing grounds, it did not reach the arguments presented in the motions to dismiss, including the Eleventh Amendment defense.

On appeal, the defendants maintain that Riley lacks standing, and they assert two other constitutional arguments that they presented to the district court in their motions to dismiss: (1) that the qui tam provisions of the FCA violate the Constitution’s Appointments Clause and (2) that qui tam actions in which the government does not intervene violate the Take Care Clause and the constitutional doctrine of separation of powers. The United States continues its intervention for the limited purpose of defending the constitutionality of the qui tam provisions.

II.

Congress enacted the FCA in 1863 to combat widespread fraud by government contractors during the Civil War.² The Act, which was amended in 1943 and 1986, provides that anyone who presents a false money claim to the federal government shall be liable for double or treble damages and civil penalties of up to $10,000 per false claim. See 31 U.S.C. § 3729. Under the qui tam provisions of the Act, any person may bring a civil action “for the person and for the United States Government” to recover damages and penalties.³ See id. § 3730(b)(1). Though initiated by a private person — a “relator” — a qui tam action is “brought in the name of the Government.” See id.

The qui tam provisions indicate that the United States is the real party in interest, with the relator functioning as the government’s attorney. To initiate a qui tam action, a relator must serve on the government the complaint and a written disclosure of the information he possesses. See id. § 3730(b)(2). The Attorney General then must decide, within sixty days, whether to “intervene and proceed with the action.”⁴ See id. By the expiration of the sixty days, the Attorney General must inform the court whether the government shall proceed with the action; if not, “the person bringing the action shall have the right to conduct the action.” See id. § 3730(b)(4)(B).

If the Attorney General declines to proceed, the relator alone represents the United States, taking full control of the litigation, including discovery, admissions, and presentation of evidence, subject only to a few specific limitations.⁵ If the relator prevails, most of the recovery is paid into the Treasury, with the relator keeping between 25% and 30% as his reward. See id. § 3730(d)(2). The relator is also entitled to attorneys’ fees. See id.

If the Attorney General initially decides not to proceed, he may intervene later only upon a showing of “good cause,” and such intervention may not limit “the status and rights of the person initiating the action.” See id. § 3730(c)(3). The relator thus retains primary control over the case, despite the government’s intervention.

If the Attorney General does enter the action within the initial sixty-day period, the government has “primary responsibility for prosecuting the action.” See id. § 3730(c)(1). The relator, however, retains “the right to continue as a party to the action.” See id. This participation right gives him a substantial role in the litigation, and he is entitled to a hearing if the Attorney General decides to dismiss the action. See id. § 3730(c)(2)(A).

If the Attorney General proposes to settle the case but the relator objects, the settlement may proceed only if “the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.” See id. § 3730(c)(2)(B). In addition, the relator participates fully at trial, calling and cross-examining witnesses, except that

[u]pon a showing by the Government that unrestricted participation during the course of the litigation by the person initiating the litigation would interfere with or unduly delay the Government’s prosecution of the case, or would be repetitious, irrelevant, or for the purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation.

See id. § 3730(c)(2)(C).

When the False Claims action is primarily conducted by the Attorney General, the relator receives between 15% and 25% of the proceeds, plus reasonable expenses (including attorneys’ fees), as determined by the court. See id. § 3730(d)(1). Moreover, if the government decides to pursue its claim in some forum other than an FCA suit — such as an administrative penalty action — the relator has the same rights in that proceeding that he would have in court. See id. § 3730(c)(5).

III.

Riley and the government contend that the long history of qui tam actions in federal courts indicates that such actions surely are constitutionally valid. But the qui tam mechanism’s historical pedigree is not sufficient to insulate the FCA’s qui tam provisions from serious constitutional scrutiny.

Riley and the government correctly point out that qui tam actions have been recognized throughout American history and were approved under English common law prior to the founding of the Republic.⁶ They also note that the first Congress enacted several statutes containing qui tam provisions,⁷ a fact they believe indicates that the framers did not think the qui tam concept is inconsistent with the Constitution.⁸

Longstanding historical usage, however, does not, by itself, render a practice constitutional.⁹ When the Supreme Court has deferred to history to validate the constitutionality of a practice, the practice has been one that was extensively debated by the adopting Congress and had become “part of the fabric of our society.”¹⁰

Qui tam actions that are brought by uninjured relators and in which the government does not intervene simply do not possess historical credentials worthy of blind deference. There is no evidence that the early Congresses considered the constitutionality of such actions, and the presence of a few early qui tam statutes does not amount to an “unambiguous and unbroken history.” Indeed, such statutes were adopted in the Republic’s early years only sparsely, and' they largely disappeared over a century ago.

Many of the early statutes granting bounties were simply informer laws that granted informers a reward but no right to sue on behalf of the government.¹¹ Of those qui tam statutes that did permit private actions, most redressed injuries suffered by private individuals—not by the government exclusively.¹² Later Congresses authorized qui tam actions only sporadically; apart from the FCA, subsequent Congresses enacted only seven qui tam statutes, and none was adopted after 1871.¹³ In short, this is no “unambiguous and unbroken history” indicating that qui tam actions by uninjured plaintiffs suing on the government’s behalf “have become part of the fabric of our society.” See Marsh, 463 U.S. at 792, 103 S.Ct. 3330.

In addition, the fact that the First Congress adopted some form of qui tam does not necessarily mean that qui tam actions are constitutional. Indeed, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), the Court struck down as unconstitutional § 13 of the Judiciary Act, adopted by the First Congress, and the Supreme Court has subsequently opined that numerous other actions taken by the First Congress were unconstitutional.¹⁴

The notion that a Congress whose members were involved in the adoption of a constitutional provision are the definitive expounders of the provision’s meaning is suspect. For example, the same Congress that proposed the Fourteenth Amendment adopted one week later a statute that reaffirmed racial segregation of public schools in Washington, D.C. See Marsh, 463 U.S. at 814 n. 30, 103 S.Ct. 3330 (Brennan, J., dissenting). Accordingly, we decline simply to defer to history to resolve the constitutional questions presented.

IV.

The district court held that it lacked power to adjudicate Riley’s claim under Article III, which limits the federal judiciary’s power to resolving “cases” or “controversies.” See U.S. Const. art. III, § 2. The court determined that Riley lacked standing under Article III because she had not alleged all the elements of standing required by recent Supreme Court decisions; in particular, she lacked an injury-in-fact. See Riley, 982 F.Supp. at 1268.

On appeal, the defendants present a number of arguments in support of the district court’s conclusion that a qui tam relator who has not experienced any personalized injury fails the test for Article III standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).¹⁵ We are precluded, however, from addressing those contentions, for a panel of this court recently concluded that a qui tam relator who has suffered no personalized injury may have standing even if the government does not intervene. See United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 288 n. 12 (5th Cir.1999), petition for cert. filed, 68 U.S.L.W. 3138 (U.S. Aug. 23, 1999) (No. 99-321), petition for cert. filed, 68 U.S.L.W. 3153 (U.S. Aug. 27, 1999) (No. 99-365), petition for cert. filed (Aug. 27, 1999) (No. 99-513).¹⁶

In what amounts to no more than a passing reference in a brief footnote, the Foulds panel, in stating that an uninjured qui tam relator may have standing, relied on two authorities: a pre-Defenders of Wildlife opinion of this court concluding that an uninjured relator had standing, see United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 460 (5th Cir.1977), and a recent opinion in which the Supreme Court adjudicated an FCA qui tam suit without objecting to the standing of the uninjured relator, see Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). Defendants argue that neither of these authorities is controlling.

Weinberger, issued before the Supreme Court strengthened the standing doctrine, adopted a now-repudiated “statutory permission” theory, which reasons that uninjured relators have standing because Congress has granted it to them via statute.¹⁷ That theory, adopted by some other courts that have approved relator standing,¹⁸ was viable when there was some confusion as to whether injury-in-fact is a prudential standing requirement that is waivable.¹⁹ But the Supreme Court since has indicated that the injury requirement is a constitutional — not a prudential — standing requirement and, accordingly, cannot be waived by legislation.²⁰

The Hughes Aircraft Court’s failure to object to a lack of standing also does not compel the conclusion that qui tam relators meet Article Ill’s standing requirements. The Court’s failure to address standing should not necessarily be read as an implicit holding that standing exists,²¹ for in dismissing the relator’s action on statutory grounds, the Court may simply have been taking the “prudential” route of avoiding constitutional questions.²² Notably, Hughes Aircraft was decided before Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), which rejected that prudential approach for jurisdictional questions.

Nonetheless, the panel that decided Foulds — albeit sua sponte and without benefit of briefing — did raise the issue of relator standing, concluding that a qui tam relator who lacked a personalized injury had standing, even when the government had declined to intervene. Our “rule of orderliness” therefore binds us on this issue, as a panel of this court cannot overrule a prior panel, absent circumstances not present here. See Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 (5th Cir.1987).²³

Defendants contend that Foulds’s discussion of relator standing is dictum and thus is not binding on us. They note that the Foulds court did not need to reach the issue of the relator’s standing to resolve the question presented in that case — i.e., whether the Eleventh Amendment barred the relator’s claims against state entities— for the Eleventh Amendment issue was itself jurisdictional. See Foulds, 171 F.3d at 288 (characterizing whether the Eleventh Amendment applies as a “threshold jurisdictional issue”). Hence, Foulds’s holding that the Eleventh Amendment barred the qui tam relator’s suit against state entities disposed of all claims in that case, regardless of whether the relator individually possessed Article III standing. Defendants therefore urge that Foulds’s discussion of a qui tam relator’s standing does not control the Article III issue presented in this appeal.

We disagree that Foulds is not controlling. In concluding that Foulds’s discussion of the relator’s standing is unnecessary to the opinion’s ultimate conclusion and is therefore dictum, the defendants assume that the jurisdictional requirements of Article III and the Eleventh Amendment are “at the same level.” In other words, it is not necessary, they assume, to determine whether there is an Article III case or controversy before deciding whether the Eleventh Amendment limits the federal court’s power to hear the case.

The Supreme Court has concluded otherwise. In Calderon v. Ashmus, 523 U.S. 740, 745, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998), the Court determined that it “must first address” whether a particular action for a declaratory judgment was an Article III case or controversy before deciding the Eleventh Amendment question on which certiorari had been granted. The Calderon Court explained that “[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial power, and therefore can be raised at any stage of the proceedings, we have recognized that it is not coextensive with the limitations on judicial power in Article III.”²⁴

Hence, while the Foulds court was correct to characterize whether the Eleventh Amendment applies as a “threshold jurisdictional issue,” see Foulds, 171 F.3d at 288, defendants are wrong in assuming that Article III standing—a more “basic” jurisdictional requirement—need not be addressed before considering whether the Eleventh Amendment abrogates federal jurisdiction. Foulds’s discussion of standing, then, is not dictum and binds this panel to the conclusion that an uninjured qui tarn relator may have Article III standing.

V.

The defendants moved to dismiss, inter alia, on the ground that qui tarn actions that are brought by uninjured relators such as Riley and in which the government does not intervene violate the Constitution’s Take Care Clause and the constitutional doctrine of separation of powers. Although the district court dismissed only on the basis of lack of standing, the defendants’ alternative constitutional arguments are properly before us on appeal²⁵ and provide an alternative ground for affirming the dismissal²⁶

A.

The Take Care Clause states that “[the Executive] shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. The doctrine of separation of powers prohibits one branch of government from intruding on the constitutionally granted powers of another.²⁷ The doctrine may be violated when one branch of government aggrandizes itself at the expense of another or when one branch “impermissibly undermine[s]” the constitutionally granted powers and functions of another, even if there is no aggrandizement.²⁸

Defendants contend that Congress’ enactment of qui tarn provisions that permit relators to bring actions on behalf of the government, even when the government declines to intervene, violated separation of powers and the Take Care Clause, because Congress transferred power to prosecute the government’s claims from the Executive Branch to unaccountable private relators. Defendants maintain that (1) prosecution of the government’s claims by individuals wholly outside the Executive Branch constitutes a violation of the Take Care Clause, and (2) the fact that the Legislative Branch stripped the Executive Branch of its exclusive prosecution power constitutes a violation of the separation of powers doctrine.²⁹ We consider these arguments together, because they are closely intertwined: Each is concerned with the encroachment on the Executive’s exclusive power to conduct litigation on behalf of the United States.

B.

The Take Care Clause gives the Executive the power to enforce the laws, see Springer v. Philippine Islands, 277 U.S. 189, 202, 48 S.Ct. 480, 72 L.Ed. 845 (1928), and such power includes the authority “to investigate and litigate offenses against the United States,” see United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F.Supp. 1084, 1088 (C.D.Cal.1989) (citing Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). There are relatively few cases in which the Supreme Court has discussed the Executive Branch’s “take care” duties and the separation of powers problems that are raised when an act of Congress impinges on those duties. In Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 856, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), the Court stated that an act of Congress is unconstitutional if it “impermissibly undermines” the powers of the Executive—leaving unanswered the definition of “permissible.” In Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Court held that Congress may not disrupt “the proper balance between the coordinate branches [by] preventing] the Executive from accomplishing its constitutionally assigned functions”; the Court did not explain what degree of congressional interference is necessary before the “proper balance” has been disrupted.

In a more recent case, the Court suggested that vesting federal law enforcement authority in officials who are not under the meaningful control of the President violates the Take Care Clause. Striking down (on other grounds) Brady Act provisions that required state officials to execute federal law by conducting background checks on gun purchasers, the Court explained:

The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed,” Art. II, § 3, personally and through officers whom he appoints .... The Brady Act effectively transfers this responsibility to thousands of [state law enforcement officers] in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive—to insure both vigor and accountability—is well-known .... That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.

Printz v. United States, 521 U.S. 898, 936, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (citations omitted).³⁰

The Court’s most thorough analysis of the Take Care Clause and its relationship to the separation of powers doctrine appears in Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), in which the Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act. The Court announced that when congressional action potentially undermines the Executive’s liti-gative function, the test of constitutionality is whether the Executive Branch retains sufficient “control” over the litigation “to ensure that the President is able to perform his constitutionally assigned duties.” Id. at 696, 108 S.Ct. 2597. While this test is not much more instructive than are the formulations in Schor and Nixon and the dicta in Printz, it is the Court’s most direct pronouncement on this category of separation of powers problems, and the courts that have considered the constitutionality of the FCA’s qui tam provisions agree that the Morrison “control” test is the appropriate standard to apply in addressing the Take Care Clause/separation of powers issue.³¹

C.

We therefore use Morrison as our guide. To determine whether the qui tam provisions violate the Take Care Clause and the separation of powers doctrine, we first consider the extent to which the provisions reduce the Executive’s control of litigation on the government’s behalf, and we then compare that loss of control to the degree of loss the Morrison Court found to be constitutionally acceptable.³²

1.

FCA qui tam actions in which the government does not intervene encroach on two aspects of the Executive’s authority: (1) the discretion to decide whether to prosecute a claim and (2) the control of litigation brought to protect the government’s interests. First, the provisions permit a private citizen to sue on behalf of the government, even though the Attorney General — perhaps because he believes that institution of the action is inimical to the government’s interests — has decided not to pursue the claim.³³ This power removes from the Executive Branch the prosecuto-rial discretion that is at the heart of the President’s power to execute the laws.³⁴

Riley and the government maintain that the prosecutorial discretion given the Executive means simply that he cannot be compelled to pursue an enforcement action he believes to be unwarranted; his discretion does not include the power to bar others from filing lawsuits under statutory schemes that permit enforcement through both governmental and private actions. But Riley and the government are falsely analogizing qui tam actions to actions in which the plaintiff sues on his own behalf and incidentally benefits the government, as in an antitrust case.³⁵

Private enforcement actions by aggrieved, individuals are not subject to the Executive’s prosecutorial discretion, but when the sole injury — the only ticket into court — belongs to the government, the Executive’s prosecutorial discretion must include the power to decide whether to bring suit. Therefore, the FCA provisions permitting qui tam actions to proceed when the government has decided not to intervene do encroach on the Executive’s authority to initiate litigation aimed solely at redressing the government’s injuries.

Second, the FCA’s qui tam provisions significantly limit the government’s ability to control the litigation. The Executive may not freely dismiss a qui tam action; if the relator objects to the decision to dismiss, the government must notify the relator of the filing of the motion to dismiss, and the court must grant the relator a hearing before deciding whether to permit dismissal.³⁶ See 31 U.S.C. § 3730(c)(2)(A).

Moreover, the Executive may not freely settle a qui tam action; if the relator objects to the government’s attempt to settle, the government must obtain court approval, and the court may approve only after it holds a hearing and finds that the settlement is “fair, adequate, and reasonable under all the circumstances.”³⁷ See id. § 3730(c)(2)(B). The Executive may not freely restrict the relator’s participation in the qui tam action; the government must first show the court that the relator’s unrestricted participation “would interfere with or unduly delay the Government’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment.” See id. § 3730(c)(2)(C). Finally, the Executive has no power to remove the relator from the litigation under any circumstances.³⁸

2.

Having considered how the FCA’s qui tam provisions encroach on Executive authority, we now compare that encroachment to the loss of executive authority occasioned by the independent counsel provisions at issue in Morrison. We conclude that, in FCA qui tam actions in which the government does not intervene, important safeguards that ensure the Attorney General’s control of the independent counsel are lacking. FCA qui tam actions in which the government does not intervene thus fail to provide the Attorney General with “sufficient control over the [relator] to ensure that the President is able to perform his constitutionally assigned dut[y]” to take care that the laws be faithfully executed. See Morrison, 487 U.S. at 696, 108 S.Ct. 2597. Accordingly, the FCA provisions permitting qui tam actions to proceed when the government does not intervene impermissibly undermine the President’s exercise of his constitutionally assigned duties and thereby violate the separation of powers doctrine.

In upholding the independent counsel provisions, the Morrison Court stressed four features of the Ethics in Government Act that preserved Executive control of prosecutions:

Most importantly, [1] the Attorney General retains the power to remove the counsel for “good cause,” a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are “faithfully executed” by an independent counsel. [2] No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General’s decision not to request appointment if he finds “no reasonable grounds to believe that further investigation is warranted” is committed to his unreviewable discretion. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. [3] In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and [4] once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not “possible” to do so.

Morrison, 487 U.S. at 696, 108 S.Ct. 2597 (emphasis added).

None of these features is present in the FCA’s qui tam provisions. The Attorney General has no power to remove a relator, no matter how irresponsible the suit becomes. If he makes the proper showing to the court, the Attorney General may limit the relator’s participation, see 31 U.S.C. § 3780(c)(2)(C), and may dismiss the action after the court has provided the relator with a hearing on the motion to dismiss, see id. § 3730(c)(2)(A), but may not simply remove the relator, see id. § 3730(c)(1), (3).

Perhaps more importantly, the second crucial feature present in the independent counsel statute is missing: The Attorney General loses all control over the decision whether to initiate the suit. Even if the Attorney General determines that there are “no reasonable grounds” for the fraud action, the relator may override that judgment and initiate a lawsuit. The action goes forward in the government’s name, under total control of the self-interested and publicly unaccountable relator, even if the Attorney General has concluded that proceeding with a lawsuit is not merited or is otherwise not in the United States’s interests or is even contrary to those interests.³⁹

The third and fourth features are also conspicuously absent. The Attorney General has no control over the breadth of a relator’s suit. Indeed, a relator may make sweeping allegations that, while true, he is unable effectively to litigate. He thereby can bind the government, via res judicata, and prevent it from suing over those concerns at a later date when more information is available. Finally, the relator, unlike the independent counsel, need not adhere to the rules and policies of the Department of Justice.

In Kelly, the Ninth Circuit recognized these distinctions between the independent counsel statute and the FCA’s qui tam provisions but held that a proper analysis would focus on the net effect of the provisions on the Executive’s powers — not on the presence or absence of the particular features the Morrison Court had highlighted.⁴⁰ It then concluded that “[t]aken as a whole, ... the FCA affords the Executive Branch a degree of control over qui tam relators that is not distinguishable from the degree of control the Morrison Court found the Executive Branch exercises over independent counsels.”⁴¹ Kelly, 9 F.3d at 757.

We disagree. Even taking the qui tam provisions “as a whole” and not focusing on any of the particular differences between the provisions and the independent counsel statute, qui tam effects a greater degree of encroachment on Executive prerogatives than does the Ethics in Government Act upheld in Morrison. The Ninth Circuit admitted that the “Attorney Gener-alas] ... unreviewable discretion to request appointment of a counsel, and therefore to initiate litigation by a counsel,” is an “unqualified control built into the independent counsel provisions,” and that “[c]learly, the government has greater authority to prevent the initiation of prosecution by an independent counsel than by a qui tam relator.” Id. at 754. Once suit has been filed, the controls the Executive Branch may exercise — most of which require court approval of some sort — are simply not sufficient to counterbalance this major encroachment on Executive power.

Another fundamental difference between the qui tam provisions and the independent counsel statute supports our conclusion. The independent counsel device was intended to address a narrow structural problem — the perceived conflict of interest when the Attorney General is called on to investigate criminal wrongdoing by his close colleagues within the Executive Branch. The Morrison Court accepted the independent counsel as an appropriate means of dealing with this intra-branch conflict. The device arguably does not unduly encroach on executive power, because its very purpose is to investigate impermissible executive activity. Moreover, it is narrowly tailored to achieve its purpose: It encroaches on the Executive only to the limited extent necessary to protect against a conflict of interest, while retaining executive control consistent with that objective.

The FCA’s qui tam provisions, on the other hand, are not aimed at a structural defect within the Executive Branch (They simply aim to increase protections against fraud.) and are not narrowly tailored to achieve their ends.⁴² Given the independent counsel statute’s special objective and narrow tailoring, the Morrison Court likely was especially forgiving of Executive encroachment. Morrison, then, represents, as we have said, the outer boundary of constitutionally permissible encroachment on executive powers, and the FCA’s qui tam provisions must fall under Morrison ’s compelling balancing test.⁴³

VI.

The dissent suggests that qui tam actions in which the government does not intervene are constitutionally acceptable as valid delegations of executive authority. There are two problems with this analysis.

First, there is no real delegation of executive authority in such cases. Congress cannot be delegating to relators the President’s power and duty to take care that the laws be faithfully executed, for Congress may not delegate purely executive power without the acquiescence of the Executive. The Executive Power Clause vests the executive power solely in the President, see U.S. Const. Art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”), so any delegation of executive power must come from the Executive.⁴⁴ There is certainly no express delegation of executive power from the Attorney General to qui tam relators, and we disagree with the dissent’s assertion that a decision not to intervene in a qui tam action is appropriately viewed as an implicit delegation of executive authority to the relator.

The meaning of an Attorney General’s decision not to intervene is ambiguous at best. It might represent his belief that the qui tam action would harm the government’s interests; for example, a suit against a defense contractor may lead to the divulging of sensitive information. There is no way to tell, from a mere decision not to intervene, whether the Attorney General is saying to the relator, “We don’t have the resources to pursue this action; go ahead and do it for us,” or “Bringing this action is contrary to our interests; don’t pursue it.”⁴⁵

In addition, the dissent’s delegation theory must fail because of the absence of an “intelligible principle” to guide the relator’s exercise of his allegedly delegated executive authority. Neither the FCA nor the Attorney General offers a relator any guidance as to how he should exercise his allegedly delegated authority to litigate the government’s claims. The relator is not even told to litigate “in the public interest” or “for the public good.” Without any intelligible principle to constrain the relator’s discretion, there can be no valid delegation of executive authority. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928); American Trucking Ass’n v. EPA, 175 F.3d 1027, 1034 (D.C.Cir.1999). The dissent asserts, perplexingly, that the intelligible principle is “the ability of the Executive to intervene in any qui tam suit,” but the possibility of Executive intervention is not really a guiding principle at all; it in no way assists the relator in figuring out how to exercise his allegedly delegated executive authority.

Because the dissent has not demonstrated (1) a genuine delegation of executive authority or (2) an intellible principle to guide the relator’s exercise of such authority, its delegation argument fails to show the constitutionality of FCA qui tam actions in which the government does not intervene.

VII.

The defendants argued forcefully in the district court, and contend now, that Riley’s lawsuit also violates Article II of the Constitution because, as a qui tam relator suing on behalf of the federal government, Riley is acting as an “officer of the United States” but has not been appointed in conformity with Article II’s Appointments Clause.⁴⁶

Defendants contend that the FCA’s qui tam provisions violate the Appointments Clause by authorizing private parties to initiate and conduct litigation on behalf of the United States — a power properly exercised only by persons who qualify as “officers” under the Appointments Clause. See, e.g., Buckley, 424 U.S. 1, 140, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Riley and the government admit that qui tam relators are not appointed pursuant to any of the mechanisms set forth in the Appointments Clause, but they aver that relators are not “officers” and that, accordingly, they need not be appointed according to Article II’s provisions. Because we affirm the dismissal on the ground that the qui tam provisions of the FCA violate the Take Care Clause and the separation of powers doctrine, we, like the district court, find it unnecessary to reach the Appointments Clause issue.⁴⁷

AFFIRMED.

In accordance with Court policy, this opinion, being one which initiates a conflict with the rule declared in another circuit, was circulated before release to the entire Court, and rehearing en banc was voted by a majority of the non-recused judges in active service. In accordance with 5th Cir. R. 41.3 the panel opinion is vacated and the mandate held pending en banc consideration.

1 . Specifically, Riley alleges that defendants (1) unnecessarily admitted patients to the hospital; (2) unnecessarily upgraded patients’ services (e.g., needlessly transferred them into intensive care); and (3) allowed Radovancevic, an unlicensed physician, to perform services and prescribe medicines and then accepted government money from Medicare and the Civilian Health and Medical Program of the Uniform Services for the services and prescriptions.

2 . The district court provided an excellent summary of the workings of the qui tam provisions of the FCA. See Riley, 982 F.Supp. at 1263.

3 . The term “qui tam," which has been in use for centuries, is short for “qui tam pro domino rege quam pro se imposo sequitur," which means "who brings the action as well for the king as for himself.” See Bass Anglers Sportsman’s Soc’y of Am. v. U.S. Plywood-Champion Papers, Inc., 324 F.Supp. 302, 305 (S.D.Tex.1971).

4 . The government may, "for good cause shown,” move the courL for an extension of the 60-day examination period. See 31 U.S.C. § 3730(b)(3).

5 . A qui tam action may be dismissed only if the court and the Attorney General give written consent. See 31 U.S.C. § 3730(b)(1); Searcy v. Philips Electronics N. Am. Corp., 117 F.3d 154, 159 (5th Cir.1997) (holding that voluntary dismissal requires government consent even if the government does not intervene). If the government shows that discovery by the relator would interfere with ongoing civil or criminal investigations or prosecutions, the court may stay discovery for a period not to exceed 60 days. See 31 (c)(4). The court may impose further stays if the Attorney General shows "that the Government has pursued lire criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the [qui tam] action will interfere with the ongoing criminal or civil investigation or proceedings.” See id.

6 . See Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 50 L.Ed. 157 (1905) ("Statutes providing for actions by a common informer, who himself had no interest in the controversy other than that given by the statute, have been in existence for hundreds of years in England, and in this country since the foundations of the Government.”).

7 . See Act of March 1, 1790, ch. 2, § 3, 1 Stat. 101, 102 (providing for qui tam actions against Marshals who fail to file census returns); Act of July 20, 1790, ch. 29, §§ 1, 4, 1 Stat. 131, 133 (actions against masters who fail to execute shipping agreements with seamen and against persons harboring runaway seamen); Act of July 22, 1790, ch. 33, § 3, 1 Stat. 137, 137-38 (actions against persons engaging in unlicensed trade with Indians). Other statutes passed by the First Congress entitled an "informer” to share with the government any monetary penalties recovered under the act, but did not make plain whether the informer was himself entitled to sue. See Act of July 1, 1789, ch. 5, § 29, 1 Stat. 29, 45 (customs duties); Act of September 1, 1789, ch. 11, § 21, 1 Stat. 55, 60 (registration of vessels); Act of August 4, 1790, ch. 35, § 55, 1 Stat. 145, 173 (import and tonnage duties).

8 . Riley also notes that the first Congress provided for federal courts to hear "prize cases," which, she asserts, are analogous to qui tam actions. Under the prize statutes, a privater could bring a captured vessel into the jurisdiction of the United States and file an in rem action. If the vessel was condemned, the captor was entitled to the ship or its value. See, e.g., The Sally, 12 U.S. (8 Cranch) 382, 3 L.Ed. 597 (1814); The Nassau, 71 U.S. (4 Wall.) 634, 18 L.Ed. 413 (1866). The prize cases are inapposite, however, for the prize statutes empowered the President to commission privater, who then acted as authorized agents of the Executive and collected captured vessels as compensation for their services. See The Sally, 12 U.S. (8 Cranch) at 384 ("[T]he prize act ... operates as a grant from the United States of all property rightfully captured by commissioned privater, as prize of war.”). Relators, by contrast, are not commissioned by the Executive to act as government agents.

9 . See Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) ("Standing alone, historical practice cannot justify contemporary violations [of the Constitution.]”); Walz v. Tax Commission, 397 U.S. 664, 678, 90 S.Ct 1409, 25 L.Ed.2d 697 (1970) (“It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.”).

10 . See Marsh, 463 U.S. at 792, 103 S.Ct. 3330. For example, in holding that appointing paid chaplains to open legislative proceedings does not violate the Establishment Clause, the Marsh Court reviewed the Framers' extensive debates regarding the practice’s constitutionality and drew a distinction between actions carefully considered by the Framers and those "taken thoughtlessly, by force of long tradition and without regard to the [constitutional] problems.” Id. at 791, 103 S.Ct. 3330. The Court also noted that "the unambiguous and unbroken history of more than 200 years” indicated that the practice "ha[d] become part of the fabric of our society.” Id. at 792, 103 S.Ct. 3330.

11 . Five of the qui tam provisions enacted by the First Congress fit this model. See Act of July 31, 1789, ch. 5, § 38, 1 Stat. 29, 48; Act of Sept. 1, 1789, ch. 11, § 21, 1 Stat. 55, 60; Act of Aug. 4, 1790, § 69, 1 Stat. 145, 177 (customs and maritime laws providing for a share of recovery to informers); Act of Sept. 2, 1789, ch. 13, § 8, 1 Stat. 65, 67 (penalties levied against Treasury Department officials for violation of prohibitions attached to their office); Act of March 3, 1791, ch. 8, § 1, 1 Stat. 215 (same). Two other statutes authorized government appointed census-takers to bring suits against uncooperative citizens and to retain half of any fines recovered. See Act of March 1, 1790, ch. 2, § 6, 1 Stat. 101, 103; Act of July 5, 1790, ch. 25, § 1, 1 Stat. 129.

12 . See Act of July 31, 1789, ch. 5, § 29, 1 Stat. 29, 45 (permitting recovery against customs officials who failed to display a table of fees and duties); Act of Aug. 4, 1790, ch. 35, § 55, 1 Stat. 145, 173 (same); Act of July 20, 1790, ch. 29, § 1, 1 Stat. 131 (allowing recovery against ships' masters who failed to contract with crew); id. § 4, 1 Stat. 131, 133 (permitting recovery against persons harboring runaway seamen). Two other statutory provisions permitted only injured parties to sue. See Act of May 31, 1790, ch. 15, §§ 2, 6, 1 Stat. 124, 125-26 (allowing authors and publishers to recover from copyright violators).

13 . Those statutes were (1) Act of Feb. 20, 1792, ch. 7, § 25, 1 Stat. 232, 239 (providing that informer could sue for penalties under postal statute and keep half); reenacted Mar. 3, 1845, ch. 43, § 17, 5 Stat. 732, 738; (2) Act of Mar. 22, 1794, ch. 11, §§ 2, 4, 1 Stat. 347, 349 (providing that individual could prosecute on government's behalf for slave trading); reenacted by Act of Mar. 26, 1804, ch. 38, § 10, 2 Stat. 283, 286; Act of Mar. 2, 1807, ch. 22, § 3, 2 Stat. 426; Act of Mar. 4, 1909, ch. 321, §§ 254-57, 35 Stat. 1138, 1140; (3) Act of July 6, 1797, ch. 11, § 20, 1 Stat. 527, 532 (providing that informer received half of penalties related to duties on paper products—unclear whether informer could sue); adopted by Act of Feb. 28, 1799, ch. 17, § 5, 1 Stat. 622, 623 (same for penalties involving altering stamp duties); (4) Act of May 3, 1802, ch. 48, § 4, 2 Stat. 189, 191 (providing that individual could prosecute on government’s behalf for employment of other than a "free white person” in postal service); (5) Act of Aug. 5, 1861, ch. 45, § 11, 12 Stat. 292, 296-97 (providing that individual could sue import assessor acting without taking oath, and keep half the fine); (6) Act of July 8, 1870, ch. 230, § 39, 16 Stat. 198, 203 (providing that individual could sue on government's behalf for unlawful contracting with Indians); reenacted by Act of May 21, 1872, ch. 177, § 3, 17 Stat. 136, 137. The First Congress's statute regarding unlawful trading with Indians was also reenacted. Act of Mar. 1, 1793, ch. 19, § 12, 1 Stat. 329, 331; Act of May 19, 1796, ch. 30, § 18, 1 Stat. 469, 474; Act of Mar. 30, 1802, ch. 13, § 18, 2 Stat. 139, 145; Act of June 30, 1834, ch. 161, § 27, 4 Stat. 729, 733-34.

14 . See, e.g., Wallace v. Jaffree, 472 U.S. 38, 100, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting) (federal aid to sectarian schools unconstitutional despite grants of such aid by the first Congress); Marsh, 463 U.S. at 814 n. 30, 103 S.Ct. 3330 (1983) (Brennan, J., dissenting) (First Congress's statute requiring public whipping of thieves presumably unconstitutional today); INS v. Chadha, 462 U.S. 919, 982 n. 18, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (holding that use by First Congress of precursors to the legislative veto was unconstitutional); Hayburn’s Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792) (declining to enforce First Congress’s statute giving courts non-judicial duties). Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 276, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ("broad consensus” that Sedition Act of 1789 was unconstitutional).

15 .The defendants argue that the weight of authority holding that uninjured qui tam rela-tors may have standing, see United States ex rel. Berge v. Board of Trustees, 104 F.3d 1453, 1457-58 (4th Cir.), cert. denied, - U.S. -, 118 S.Ct. 301, 139 L.Ed.2d 232 (1997); United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 720 (9th Cir.1994); United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1154 (2d Cir.1993); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir.1993); United States ex rel. Woodard v. Country View Care Ctr., 797 F.2d 888, 893 (10th Cir.1986); United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 460 (5th Cir.1977), is unpersuasive, for each court that has approved a relator's standing under the FCA has relied on fallacious reasoning or on standing theories that are invalid in light of the subsequent decision in Defenders of Wildlife.

16 . The district court did not have the benefit of Foulds, which was issued after judgment was entered herein.

17 . See Weinberger, 557 F.2d at 460 (reasoning that "the statute clearly accords [the relator] standing to bring the action”).

18 . See, e.g., Woodard, 797 F.2d at 893 ("The statute of course eliminated any standing problem.”).

19 . See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (referring to prudential standing requirements that are waivable by statute).

20 . See Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (holding that the injury requirement is part of the "irreducible constitutional minimum of standing”); Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ("It is settled that Congress cannot erase Article Ill’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”).

21 . See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 338 n. 12 (5th Cir.1999) ("Even though subject matter jurisdiction can be raised sua sponte, we take nothing away from our failure to do so in these cases.”).

22 . See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

23 . Despite the fact that Foulds has decided the issue, we have discussed the question, Cor the benefit of the reader, because the Foulds court engaged in no analysis of the standing question.

24 . Id. at 745 n. 2, 118 S.Ct. 1694 (citing Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); Patsy v. Board of Regents, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)).

25 . See Colautti v. Franklin, 439 U.S. 379, 397 n. 16, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) ("Appellees, as the prevailing parties, may of course assert any ground in support of that judgment, 'whether or not that ground was relied upon or even considered by the trial court.’ ”) (quoting Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)).

26 . Wooton v. Pumpkin Air, Inc., 869 F.2d 848, 850 n. 1 (5th Cir.1989) ("When the judgment of the district court is correct, it may be affirmed on appeal for reasons other than those asserted or relied on below.") (quoting Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 n. 3 (5th Cir.1986)).

27 . See Humphrey's Executor v. United States, 295 U.S. 602, 629-30, 55 S.Ct. 869, 79 L.Ed. 1611 (1935) ("The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others ... is hardly open to serious question.").

28 . See Clinton v. Jones, 520 U.S. 681, 701, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (stating that "the separation of powers doctrine requires that a branch not impair another in the performance of its constitutional duties”) (quoting Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996)); Morrison v. Olson, 487 U.S. 654, 694-95, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988); Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 856-57, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986); Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). See also Neil Kinkopf, Of Devolution, Privatization and Globalization: Separation of Powers Limits on Congressional Authority To Assign Federal Power to Non-federal Actors, 50 Rutgers L.Rev. 331, 338-39 (1998).

29 . The dissent insists that there is no separation of powers problem, because “Congress has not usurped [executive authority] at all, much less for its own use.” In so reasoning, the dissent commits the error of viewing all separation of powers violations as requiring aggrandizement of one branch at the expense of another.

The separation of powers doctrine is not so limited; it may also be violated when one branch "impermissibly undermine[s]” the constitutionally assigned powers of another, even if the trespassing branch does not usurp those powers for itself. See, e.g., Jones, 520 U.S. at 701, 117 S.Ct. 1636 (“[T]he separation of powers doctrine requires that a branch not impair another in the performance of its constitutional duties.”) (quoting Loving, 517 U.S. at 757, 116 S.Ct. 1737). Defendants’ argument is that Congress, in stripping the Executive of his exclusive power to initiate and control causes of action that belong exclusively to the government, impermissibly undermined the President’s power to "take Care that the Laws be faithfully executed.” Defendants do not attempt to show that Congress aggrandized itself, but they need not do so to establish a separation of powers violation.

30 . The Printz Court observed that early statutes requiring state officials to enforce federal laws imposed only adjudicative, not executive, duties on state officials. See Printz, 521 U.S. at 927, 117 S.Ct. 2365 (recognizing "early [federal] statutes imposing obligations on state courts" but noting an "utter lack of statutes imposing obligations on the States’ executives”). This observation counters the government's argument that the history of state officials’ executing federal law demonstrates that the Constitution does not require that the President retain meaningful control over federal law enforcement. The early statutes to which the government points as indicating that state officials have historically enforced federal law may have permitted adjudicative tasks, but they could not properly have allowed state officials to sue on behalf of the federal government, for "[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President ... that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed.’ ” Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam).

31 . See, e.g., Kelly, 9 F.3d at 750-51; United States ex rel. Truong v. Northrop Corp., 728 F.Supp. 615, 620-22 (C.D.Cal.1989) (reasoning that "under Morrison v. Olson, for the qui tam provisions of the False Claims Act to pass constitutional muster, the executive branch must retain ‘sufficient’ ... control over the litigation”); Stillwell, 714 F.Supp. at 1089-90; United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp. 607, 611-13 (N.D.Cal.1989).

32 . The independent counsel provisions of the EGA likely represent the outer limits of congressional encroachment on another branch's powers and functions. As discussed below, the provisions were narrowly tailored to address a particularly perplexing intra-branch conflict: the conflict of interest that exists when the Attorney General is called on to investigate criminal wrongdoing by his close colleagues within the Executive Branch.

The Supreme Court accepted the independent counsel device’s encroachment on executive powers as an evil that had to be incurred to provide some accountability within the Executive Branch. The problem presented was unique, and the Court was thus particularly forgiving of executive encroachment. We therefore view Morrison as expressing the outer boundary of executive encroachment; any legislation that leads to more encroachment than that the Morrison Court considered must be unconstitutional.

33 . See 31 U.S.C. § 3730(c)(3) ("If the Government elects not to proceed with the action, the person who initiates the action shall have the right to conduct the action.”).

34 . See United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ("[T]he decision of a prosecutor in the Executive Branch not to indict ... has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’ ”).

35 . The dissent draws a similar false analogy between qui tam actions and title VII suits. It construes title VII suits by private plaintiffs as the private enforcement of federal law. This analogy fails, because a private title VII plaintiff sues to redress his own injury and only incidentally benefits the government. By contrast, the only interest most qui tam rela-tors vindicate is the government’s. Qui tam actions, unlike title VII suits, aim to redress purely public injuries.

36 . The requirement that the government obtain court permission to dismiss a qui tam suit raises serious questions regarding the balance of power between the Executive and Judicial Branches. See United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965) (en banc) ("It follows, as an incident of the constitutional separation of powers, that the courts are not free to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”); In re Int’l Bus. Machs. Corp., 687 F.2d 591, 602 (2d Cir.1982) ("The district court's involvement in the executive branch's decision to abandon litigation might impinge upon the doctrine of separation of powers.”). Such questions are not implicated in this case, however, because they involve potential interference with Executive prerogatives not by a relator, as here, but by the judiciary.

37 . Gravitt v. General Elec. Co., 680 F.Supp. 1162 (S.D.Ohio 1988), illustrates how the qui tam provisions encroach on the Executive’s control of settlements. There, the court refused to accept the government’s settlement, lecturing the Justice Department on the inadequacy of its investigation into the matter alleged in the relator's complaint. See id. at 1164. It turns out, however, that the fraud complained of resulted in a net undercharge to the government, and a few years later, the Justice Department succeeded in settling for the sum the Gravitt court initially rejected. See Memorandum re: Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 U.S. Op. Off. Legal Counsel 207, 219.

38 . See 31 U.S.C. § 3730(c)(1) (providing that if the government intervenes, the relator "shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (2)," none of which permits removal); id. § 3730(c)(3) (providing that if government intervenes after initially deciding not to do so, it may not limit relator’s status and rights). One commentator has pointed out that a plain reading of § 3730(c)(3) appears to bar the government from dismissing a case if it intervenes after initially declining to do so, for dismissal would certainly “limit[ ] the status and rights of the person initiating the action.” See James T. Blanch, Note, The Constitutionality of the False Claims Act’s Qui Tam Provisions, 16 Harv. J.L. & Pub. Policy 701, 766 (1993). But see Kelly, 9 F.3d at 752 & n. 8 (reasoning that to preserve the FCA, the Act should be interpreted to give government similar degree of control over litigation as if it had intervened at litigation’s inception).

39 . As the Foulds panel noted, "the government does not expect that the relator will act first and foremost with the government’s interests in mind.” Foulds, 171 F.3d at 290. Qui tam relators "are motivated primarily by prospects of monetary reward rather than the public good.” Hughes Aircraft, 520 U.S. at 949, 117 S.Ct. 1871.

Of course, this concern about encroachment on the Executive’s prosecutorial discretion is present only in qui tam actions in which the government declines to intervene. When the Attorney General does intervene, the Executive is essentially initiating the action at the urging of an informer, and he thereby retains “a degree of control over the power to initiate” the action. Accordingly, our holding addresses only those FCA qui tam actions, such as Riley’s, in which the government declines to participate. We express no opinion as to whether qui tam actions in which the government intervenes violate the Take Care Clause or the separation of powers doctrine.

40 . The Kelly court explained:

[The defendant] suggests that we should look at the precise means of executive control identified and found sufficient in Morrison, and then base our decision on the absence of. those same means in the qui tam provisions. [The relator], on the other hand, suggests that we identify all possible means of executive control in the qui tam provisions, and then compare them in toto to the means of control identified in Morrison. We believe that, under Morrison, Kelly’s approach is the correct one.

Kelly, 9 F.3d at 752.

41 . The Second and Sixth Circuits, as well, have rejected Take Care Clause and separation of powers challenges to the qui tam provisions on the basis of the FCA's preservation of executive authority. See Kreindler & Kreindler, 985 F.2d at 1155; United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir.1994).

42 . There are many other ways in which Congress could increase fraud enforcement. For example, it could provide greater resources to the Attorney General or greater bounties to informers.

43 . Because our holding prohibits only those qui tam actions in which the government does not intervene, the dissent’s statistics indicating the effectiveness of all FCA qui tam actions are inapposite. The dissent cites statistics showing that FCA qui tam actions have resulted in a "boon to the federal treasury,” implicitly suggesting that such statistics should influence our opinion of the constitutionality of the qui tam action at issue in this case. While the alleged effectiveness of the FCA’s qui tam provisions should not affect our decision as to their constitutionality, we note that the only statistics relevant to this case would describe the effectiveness of a subset of qui tam actions — those in which the government does not intervene.

Department of Justice reports indicate that such actions, relative to qui tam actions in which the government does intervene, have not resulted in a "boon to the federal treasury.” As of October 1998, the government had recovered $2.189 billion in cases in which it had intervened but only $60 million in cases in which it had not. See Justice Department Recovers More than $2 Billion in False Claims Act Awards and Settlements (Dep’t of Justice press release Oct. 23, 1998). These statistics indicate that less than 2.7% of total recovery under the FCA’s qui tam provisions comes from actions in which the government does not intervene. The cases in which the government intervenes — cases that are not affected by our holding — are generally the meritorious cases. Hence, the dissent's implicit suggestion that our decision today disables an effective law enforcement tool is off base.

44 . See Steven G. Calabresi and Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 Yale LJ. 541, 593 (1994) (noting that "the Executive Power Clause grants 'the executive Power’ solely and exclusively to the President,” so "Congress may not exercise ‘the executive Power' itself, nor may it give that power to other subordinate entities”). Cases approving congressional delegation of judicial power, such as those cited by the dissent, are inapposite, for Article III, in contrast to Article II, vests judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. Art. Ill, § 1 (emphasis added). The Constitution thus contemplates congressional delegation of judicial power but not legislative delegation of the President's authority to take care that the laws be faithfully executed.

45 . One might argue that if the Attorney General did not want the action brought, he could merely intervene and dismiss the action, so a decision not to intervene must be an implicit delegation. The FCA, however, makes it difficult for the government to dismiss actions it does not want brought. The government may not intervene in the action and dismiss it over the relator's objections unless the Attorney General obtains court approval — from a democratically unaccountable federal court — after granting the relator a hearing. See 31 U.S.C. § 3730(c)(2)(A).

Moreover, if the government does not intervene within 60 days, it cannot, under the FCA’s plain text, reenter and dismiss the suit, for in entering a qui tam action after initially declining to intervene, the government may not "limit the status and rights of the relator,” as it undoubtedly would do if it entered the litigation and sought dismissal of the action. See id. § 3730(c)(3). Hence, a strategy of intervention and dismissal is difficult, and a decision not to intervene should not be viewed as an implicit delegation by the Attorney General; it might instead result from a decision that the lawsuit is harmful and should not be pursued.

The case would be different if the FCA required the Attorney General, in announcing his decision not to intervene, to state that he was delegating authority to sue to the qui tam relator. Under the current statute, however, it is not appropriate to infer delegation by the Executive from a decision not to intervene.

46 . The Appointments Clause states:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. But the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.

The Article II arguments the defendants presented in addition to their Article III challenge constitute alternative grounds for affirming the district court’s dismissal and are properly before us on appeal. See Colautti, 439 U.S. at 397 n. 16, 99 S.Ct. 675 (“Appellees, as the prevailing parties, may of course assert any ground in support of that judgment, 'whether or not that ground was relied upon or even considered by the trial court.' ”) (quoting Dandridge, 397 U.S. at 475 n. 6, 90 S.Ct. 1153); Wooton, 869 F.2d at 850 n. 1 ("When the judgment of the district court is correct, it may be affirmed on appeal for reasons other than those asserted or relied on below.”) (quoting Terrell, 792 F.2d at 1362 n. 3).

47 . In the district court, the University of Texas Health Science Center at Houston defended on the ground, inter alia, that, because it is an arm of the state, the Eleventh Amendment forbids suits against it by a private party, absent a waiver of sovereign immunity. In Foulds, this court agreed with that analysis, holding that the Eleventh Amendment bars a qui tam suit by a relator against a state entity. See Foulds, 171 F.3d at 288-94. All parties herein agree that the Foulds holding precludes liability on the part of the University of Texas Health Science Center at Houston, and this is an alternate ground for affirmance as to that defendant, which is entitled to dismissal as well under our conclusion that this suit is barred by the Take Care Clause and separation of powers doctrine.