Michele Yates v. Pinellas Hematology & Oncology, P.A. ( 2021 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10276
____________________
MICHELE YATES,
Plaintiff-Appellee,
versus
PINELLAS HEMATOLOGY & ONCOLOGY, P.A.,
Defendant-Appellant,
PRATIBHA DESAI,
an individual,
Defendant.
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____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:16-cv-00799-WFJ-CPT
____________________
Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
JORDAN, Circuit Judge:
The jury in this qui tam case found that Pinellas Hematology
& Oncology violated the False Claims Act, 31 U.S.C. § 3729 et seq.,
on 214 occasions, and that the United States had sustained $755.54
in damages. Following that verdict, the district court trebled the
damages and imposed statutory minimum penalties of $1,177,000
($5,500 for each of the 214 violations).
On appeal, Pinellas challenges the admission of an exhibit,
the jury’s verdict on liability and damages, and the monetary award
imposed by the district court. After a review of the record, and
with the benefit of oral argument, we affirm in part and dismiss in
part.
I
We summarize the facts in the light most favorable to the
jury’s verdict. See Royal Palm Properties, LLC v. Pink Palm Prop-
erties, LLC, 950 F.3d 776, 782 (11th Cir. 2020).
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A
Pinellas was a medical practice owned by Dr. Pratibha De-
sai. During the relevant period, Pinellas’ headquarters and primary
office were located on Park Street in Saint Petersburg, Florida. We
refer to this location as Park Place.
Park Place had a clinical laboratory at which, among other
things, Pinellas would draw blood from patients and run laboratory
tests on those blood samples. For patients who had Medicare cov-
erage, Pinellas would seek reimbursement from the federal gov-
ernment for those tests.
In April of 2015, Pinellas purchased an oncology practice
that was located at Bayfront Hospital in Saint Petersburg, Florida.
We refer to this practice, which also had its own clinical laboratory,
as Bayfront.
Under the Clinical Laboratory Improvement Amendments
of 1988 and its regulations, no laboratory can conduct tests on ma-
terials derived from the human body unless it has the proper CLIA
certificate. See 42 U.S.C. § 263a(b); 42 C.F.R. §§ 493.1, .3(a), .15,
.43–49; Center for Medicare and Medicaid Services, Medicare
Claims Processing Manual, § 70.1 (2020). Both Park Place and Bay-
front had the appropriate CLIA certificates prior to the purchase of
Bayfront, but Bayfront’s CLIA certificate did not transfer to Pinel-
las. Because each laboratory location must have its own CLIA cer-
tificate, see 42 C.F.R. § 493.43(a), Pinellas could not use either of
the preexisting CLIA certificates to perform its laboratory tests at
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Bayfront. Pinellas instead had to obtain a new CLIA certificate for
Bayfront linking the latter to it. 1
The problem for Pinellas was that it did not have the proper
CLIA certificate for Bayfront from April of 2015 until March of
2016, but it still performed tests at Bayfront during that time. The
bigger problem for Pinellas was that it then submitted reimburse-
ment claims to Medicare for those tests. And the biggest problem
for Pinellas was that when Medicare rejected those claims, it al-
tered the relevant information and resubmitted them—twice.
Michele Yates, Pinellas’ billing manager, filed a qui tam ac-
tion against Pinellas and Dr. Desai. She alleged that they had vio-
lated the FCA by defrauding the United States through the submis-
sion of the Bayfront reimbursement claims to Medicare and by re-
taliating against her for attempting to stop their fraudulent con-
duct. The United States chose not to intervene. See 31 U.S.C. §
3730(b)(2).
Before trial, Pinellas filed a motion in limine to exclude Ex-
hibit 24, a spreadsheet prepared by Ms. Yates which summarized
1 The parties debate whether Bayfront’s preexisting CLIA certificate could be
transferred to Pinellas or whether Pinellas had to obtain a new CLIA certificate
for Bayfront. In our view, the particular method of obtaining a CLIA certifi-
cate for Bayfront linked to Pinellas does not matter. Whether through a trans-
fer or a brand-new application, Bayfront was required to have a CLIA certifi-
cate linked to Pinellas, and it did not have one from April of 2015 until March
of 2016.
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some of the allegedly fraudulent claims submitted to Medicare.
The district court denied Pinellas’ motion without prejudice.
At trial, Ms. Yates told the jury that, between April and July
of 2015, Pinellas had billed Medicare over 2,000 times for labora-
tory tests performed at Bayfront. Because Bayfront did not have a
CLIA certificate at that time, those initial claims did not include a
CLIA certificate number. As a result, Medicare denied those
claims.
To have Medicare pay the claims, Pinellas altered the infor-
mation on the claim forms to make it seem as if the laboratory tests
had been conducted at Park Place, which did have a valid CLIA
certificate linked to Pinellas. When it first resubmitted the claims,
Pinellas added Park Place’s CLIA certificate number to the Bay-
front claim forms. Medicare, however, also denied that second set
of claims. So, Pinellas resubmitted the claims once again, this time
changing the location of service from Bayfront’s address to Park
Place’s address. Medicare paid some of the claims from the third
set.
Documentary evidence corroborated Ms. Yates’ testimony.
For instance, a May 9, 2015, internal email from Lia Valentin, a Pi-
nellas billing assistant, to Ms. Yates and others read as follows:
Michel[e], I just wanted to remind you that the claims
with medicare that have labs in them the location has
to be switched to pinellas park because the claim are
denying until we have the clia fixed for the bayfront
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office location. Im correcting the claims that came
back that did not get paid & refiling them.
D.E. 201-3 at 2.
Another email sent by Ms. Valentin, on July 14, 2015, stated:
I verify we have not yet added bayfront office . . . to
Dr. Desai[’s] Clia number. the only two offices that
are currently ok with the Clia number is park place &
largo. For now any denial we receive we change the
place of address to Pinellas park address and refile the
claim to medicare. [T]hat way we can get the lab paid.
D.E. 201-4 at 5.
Ms. Yates moved during trial to introduce Exhibit 24—the
spreadsheet—into evidence, and Pinellas did not object. She testi-
fied that Exhibit 24 showed that Pinellas had submitted 214 claims
for Bayfront laboratory tests with Park Place’s CLIA certificate
number and had changed the location of service to Park Place’s ad-
dress. Out of that total, Medicare paid 64 claims totaling $755.54. 2
2 Ms. Yates testified that all 214 claims included in Exhibit 24 had the location
of service changed to Park Place’s address. Our review of the few claim forms
that are in the record on appeal, however, confirms that that is not the case.
Though all the available claim forms include Park Place’s CLIA certificate
number, some did not have the location of service changed to Park Place’s
address. We note this discrepancy but do not address its implications, if any,
because the insertion of Park Place’s CLIA certificate number by itself is suffi-
cient to constitute a false certification under the FCA.
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B
The jury found Dr. Desai not liable. As to Pinellas, the jury
found it liable for having knowingly submitted 214 materially false
claims to Medicare, thereby violating the FCA. The jury also found
that the United States had suffered $755.54 in damages.
Following the verdict, Pinellas filed a renewed motion for
judgment as a matter of law and/or remittitur under Rules 50(b)
and 59(e) of the Federal Rules of Civil Procedure. In its motion and
subsequent filings, Pinellas argued that the evidence presented at
trial was insufficient to support the jury’s verdict. Pinellas also as-
serted that, for various reasons, discrete claim subsets should be
deducted from the 214 claims for which the jury had found it liable.
In the alternative, Pinellas moved for remittitur, submitting that
the damages and statutory penalties mandated by the FCA consti-
tuted an excessive fine in violation of the Eighth Amendment.
The district court denied Pinellas’ renewed motion. It found
that the evidence, though contested, was sufficient to support the
jury’s verdict. As to the damages and statutory penalties, the FCA
mandated the imposition of treble damages and statutory penalties
of between $5,500 and $11,000 per false claim. See 31 U.S.C §
3729(a)(1); 28 C.F.R. § 85.3(a)(9). Accordingly, the court imposed
a total monetary award of $1,179,266.62—composed of (i) treble
damages of $2,266.62 (3 x $755.54), and (ii) the lowest permissible
statutory penalty of $1,177,000.00 (214 x $5,500). Though noting
that the amount was “very harsh,” the court ultimately held that it
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did not violate the Eight Amendment’s prohibition on excessive
fines. See D.E. 227 at 3–4.
On appeal, Pinellas challenges the district court’s admission
of Exhibit 24, the jury’s verdict on liability and damages, and the
total monetary award. We address each argument below.
II
Pinellas argues that, for various reasons, the district court
abused its discretion in admitting Exhibit 24 at trial. Ms. Yates re-
sponds that Pinellas failed to preserve its objection, which in any
event lacks merit. We agree with Ms. Yates on the first point.
To preserve a claim that a district court improperly admitted
evidence, a party must make a timely objection. See Fed. R. Evid.
103(a)(1)(A). That objection can come before or during trial, and
once the district “court rules definitively on the record . . . a party
need not renew [its] objection . . . to preserve a claim of error for
appeal.” Fed. R. Evid. 103(b). When the objection comes in the
form of a motion in limine before trial, a district court makes a de-
finitive ruling if its decision is final or with prejudice; conversely, if
the court’s ruling is tentative or without prejudice, there is no de-
finitive ruling on the objection. See Tan Lam v. City of Los Banos,
976 F.3d 986, 1005 (9th Cir. 2020); 1 Jack B. Weinstein & Margaret
A. Berger, Weinstein’s Federal Evidence, § 103.11[2][b] (2d ed.
2021). In the latter scenario, the objecting party must renew its
objection at trial to preserve a claim of error for appeal. See United
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States v. Wilson, 788 F.3d 1298, 1313 (11th Cir. 2015); Tan Lam,
976 F.3d at 1006.
When a party fails to preserve an evidentiary objection, we
review the district court’s admission of evidence for plain error.
See Wilson, 788 F.3d at 1313. To reverse under plain error review,
we must find an error that is plain and that has affected the object-
ing party’s substantial rights. See United States v. Olano, 507 U.S.
725, 733–34 (1993); United States v. Hesser, 800 F.3d 1310, 1324
(11th Cir. 2015). “Once those three conditions have been met,” we
ask whether the forfeited error “seriously affects the fairness, integ-
rity or public reputation of judicial proceedings.” Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1905 (2018) (internal quotation
marks omitted). Our ultimate decision under plain error review is
discretionary. See Fed. R. Evid. 103(e) (“A court may take notice
of a plain error affecting a substantial right, even if the claim of er-
ror was not properly preserved.”) (emphasis added); United States
v. Marcus, 560 U.S. 258, 262 (2010) (explaining that under plain er-
ror review, “an appellate court may, in its discretion, correct an er-
ror not raised at trial only where the appellant demonstrates” that
the required elements are met).
In this case, Pinellas objected to the admission of Exhibit 24
through a motion in limine. The district court denied that motion
without prejudice, meaning that its ruling was not definitive. Pi-
nellas was accordingly required to renew its objection to the ad-
mission of Exhibit 24 at trial when Ms. Yates moved for its
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admission. Pinellas did not do so, and thus failed to preserve its
claim of error for appeal. See Wilson, 788 F.3d at 1313.
As a result, we would generally review the admission of Ex-
hibit 24 for plain error. But, as noted, reversal for plain error is
discretionary. And because the onus to demonstrate plain error is
on the party challenging the evidentiary ruling, we have in the past
declined to conduct a plain error analysis sua sponte when that
party makes no effort to satisfy the standard. See United States v.
Gari, 572 F.3d 1352, 1362 (11th Cir. 2009).
On appeal, Pinellas was put on notice of its failure to pre-
serve its claim of error by Ms. Yates, but it has chosen not to argue
in the alternative that the admission of Exhibit 24 constituted plain
error. Instead, Pinellas argues (incorrectly) only that it preserved
its claim of error below. As Pinellas has not argued that the admis-
sion of Exhibit 24 rose to the level of plain error, we decline to con-
struct that argument for Pinellas and then rule on it. We therefore
affirm the district court’s admission of Exhibit 24.
III
Pinellas’ challenge to the jury’s verdict comes to us, for the
most part, from the district court’s denial of the renewed motion
for judgment as a matter of law. Therefore, except where other-
wise noted, “[w]e review the district court’s decision de novo, ap-
plying the same standard that court applied.” Royal Palm, 950 F.3d
at 782. Under that standard, our task is to determine whether the
record—viewed in the light most favorable to Ms. Yates (the
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prevailing party)—points so overwhelmingly in favor of Pinellas
that the jury’s verdict cannot stand. See id. Stated differently, the
verdict will be set aside only if no reasonable jury could have ar-
rived at it. See id.
A
Enacted in 1863 to combat fraud perpetrated against the Un-
ion Army during the Civil War, the FCA has become the United
States’ “primary litigative tool for combatting fraud.” S. Rep. No.
99-345, at 2, 4 (1986). Before delving into the merits of Pinellas’
challenge to the jury’s verdict, we provide a brief overview of
§§ 3729(a)(1)(A) and (a)(1)(B), the relevant provisions of the FCA.
Through § 3729(a)(1)(A), the FCA imposes liability on any
person who “knowingly presents, or causes to be presented, a false
or fraudulent claim for payment or approval.” And § 3729(a)(1)(B)
imposes liability on anyone who “knowingly makes, uses, or causes
to be made or used, a false record or statement material to a false
or fraudulent claim.”
Pinellas’ challenge to the jury’s verdict on liability takes aim
at the three elements shared by both provisions: the existence of a
false claim or statement, the materiality of that false claim or state-
ment, and scienter. See United States ex rel. Phalp v. Lincare Hold-
ings, Inc., 857 F.3d 1148, 1154 (11th Cir. 2017). Pinellas also asks us
to overturn the jury’s verdict on damages because, it says, the
United States suffered no harm.
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B
Turning first to Pinellas’ argument on the falsity element,
we note that the FCA does not define the term “false.” Case law,
however, has identified various types of false claims and state-
ments. For example, a claim is false when it misrepresents the
goods or services provided. See United States ex rel. Greenfield v.
Medco Health Sols., Inc., 880 F.3d 89, 94 (3d Cir. 2018); United
States ex rel. Thomas v. Black & Veatch Spec. Projects Corp., 820
F.3d 1162, 1168 (10th Cir. 2016); United States v. Sci. Applications
Intern. Corp., 626 F.3d 1257, 1266 (D.C. Cir. 2010). A claim is also
false when a person or entity fails to comply with statutory, regu-
latory, or contractual requirements but certifies that it has com-
plied with them. See Universal Health Services Inc., v. United
States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016); Phalp, 857 F.3d
at 1154.
Ms. Yates based her FCA claims on a false certification the-
ory. She asserted that Pinellas falsely certified that it complied with
the CLIA’s requirement that a laboratory possess the proper CLIA
certificate to conduct, and bill for, laboratory tests. Pinellas, she
claimed, did that by adding Park Place’s CLIA certificate number
and address to Medicare reimbursement claims for laboratory tests
conducted at Bayfront.
In its brief on appeal, Pinellas argues that none of the claims
it submitted to Medicare is false. According to Pinellas, the unpaid
claims are not false because “they did not list any CLIA [certificate]
number on the claims form.” Appellant’s Br. at 37. As to the paid
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claims, Pinellas contends that they are not false because they are
not material. Both arguments fail.
First, Pinellas does not point to any evidence to support its
argument that none of the unpaid claims is false. Its single citation
is to an explanation of a benefits form that, as best we can tell, was
not introduced at trial. Moreover, we see no indication that this
form relates to any of the 214 claims on which the jury found Pi-
nellas liable. And even if the form did correspond to one of the
claims, the explanation of benefits would tell us nothing about the
remaining 213 claims included in Exhibit 24. Finally, the few claim
forms that are in the record on appeal all include Park Place’s CLIA
certificate number.
Indeed, Ms. Yates testified that she created Exhibit 24 with
data provided by her expert, Adam Sharp, who converted Pinellas’
electronic claims data into a reimbursement form format. Accord-
ing to Ms. Yates, she whittled down the reimbursement claim
forms that Mr. Sharp had provided her to 214, all of which included
Park Place’s CLIA certificate number.
Second, we reject Pinellas’ argument that the paid claims are
not false because they are not material. The falsity and materiality
elements of an FCA claim are distinct and independent require-
ments. A claim may be material but not false, false but not mate-
rial, or both material and false. A reasonable jury could have found
that the 214 claims included in Exhibit 24 were false.
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C
We also disagree with Pinellas’ arguments on the FCA’s ma-
teriality element. Based on our review of the record, a reasonable
jury could have found that the 214 claims included in Exhibit 24
were material to the United States’ decision to pay.
The FCA defines the term “material” as “having a natural
tendency to influence, or be capable of influencing, the payment or
receipt of money or property.” 31 U.S.C. § 3729(b)(4). The mate-
riality element seeks to limit the scope of liability under the FCA to
claims for which the government “would have attached im-
portance to the violation in determining whether to pay the claim.”
United States ex rel. Marsteller v. Tilton, 880 F.3d 1302, 1313 (11th
Cir. 2018). See Escobar, 136 S. Ct. at 2003 (“Materiality . . . cannot
be found where noncompliance is minor or insubstantial.”). Sig-
nificantly, the materiality analysis is holistic. See United States ex
rel. Bibby v. Mortg. Inv’rs Corp., 987 F.3d 1340, 1347 (11th Cir.
2021). Some of the relevant, non-exhaustive factors include
whether the matter is an express condition to payment; whether,
to the extent the United States had actual knowledge of the misrep-
resentations, they had an effect on its behavior; and whether the
misrepresentations went to the essence of the bargain. See id. Pi-
nellas targets those factors in its appeal.
Pinellas first argues that “because the incorrect CLIA num-
ber was not a condition to payment,” Ms. Yates’ claims are not ac-
tionable under the FCA. See Appellant’s Br. at 27. In support, Pi-
nellas relies on United States ex rel. New Mexico v. Deming Hosp.
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Corp., 992 F. Supp. 2d 1137 (D.N.M. 2013), and United States ex
rel. Hobbs v. MedQuest Associates, Inc., 711 F.3d 707 (6th Cir.
2013). But to the extent that Pinellas relies on the labelling of the
CLIA certification requirement as one of payment, the Supreme
Court in Escobar rejected formalism for reality. There, the Court
stated that the United States’ decision to label a requirement as a
condition of payment is relevant but not dispositive. See Escobar,
136 S. Ct. at 2003. The materiality inquiry asks whether a misrep-
resentation would or did influence the United States’ decision to
pay, and neither Deming nor Hobbs helps answer that question. 3
Deming and Hobbs dealt with legal requirements different
from those at issue here. Deming involved regulations requiring
hospital laboratories that were already CLIA-certified to remain in
compliance with certain standards. See Deming, 992 F. Supp. 2d at
3 We have significant doubts about Pinellas’ argument that a CLIA certificate
is not a condition of payment. “Conditions of payment are those which, if the
government knew they were not being followed, might cause it to actually
refuse payment.” United States ex rel. Conner v. Salina Regl. Health Ctr., Inc.,
543 F.3d 1211, 1220 (10th Cir. 2008). “CMS always cancels a laboratory’s ap-
proval to receive Medicare payment for its services if CMS suspends or re-
vokes the laboratory’s CLIA certificate.” 42 C.F.R. § 493.1842(a)(1). And Med-
icare’s claims processing manual indicates that “[t]he CLIA mandates that vir-
tually all laboratories, including physician office laboratories (POLs) . . . have
a CLIA certificate in order to receive reimbursement from Federal programs.”
See CMS, Medicare Claims Processing Manual, § 70.1. Because the jury had
sufficient evidence otherwise to find that Pinellas’ violations were material,
however, we need not decide whether CLIA certification is a condition of pay-
ment.
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1148. And the regulations at issue in Hobbs are unrelated to CLIA
certification. See Hobbs, 711 F.3d at 710–12 (considering an FCA
claim based on misstatements regarding supervising physician reg-
ulations). Therefore, Deming and Hobbs tell us little, if anything,
about whether falsely stating that tests were conducted in a CLIA-
certified laboratory would or did influence the United States’ deci-
sion to pay Pinellas’ claims.
Pinellas next argues that the United States’ failure to seek
reimbursement or seek sanctions once it had actual knowledge of
the misrepresentations indicates that they were not material. We
agree with Pinellas that the United States’ behavior after it has paid
a claim, and knows of a violation, may be relevant to the material-
ity analysis. See Bibby, 987 F.3d at 1350–51. Yet that behavior is
relevant only to the extent that it helps answer the ultimate ques-
tion: whether the United States “would have attached importance
to the violation in determining whether to pay the claim.”
Marsteller, 880 F.3d at 1313. The record in this case includes other
evidence on that question—e.g., Medicare’s actions and Pinellas’
beliefs at the time of the submission of the false claims—that is
more than sufficient to uphold the jury’s verdict.
Based on Ms. Yates’ testimony, the May 9th and July 14th
emails from Ms. Valentin, and Exhibit 24, the jury could reasonably
find that the United States denied the initial Bayfront claims that
lacked a CLIA certificate number; that Pinellas understood the de-
nial of those claims to be the result of the lack of a CLIA certificate
number; that, in response, Pinellas refiled those claims with Park
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Place’s CLIA certificate number; that Pinellas understood the de-
nial of those refiled claims to be due to the mismatch between Park
Place’s CLIA certificate number and Bayfront’s address; that, to ob-
tain payment, Pinellas directed its employees to again refile the
claims, this time with the location of service changed to Park
Place’s address, until the CLIA certificate issue was “fixed”; and that
the United States paid some of those refiled claims. That evidence
was enough to prove the materiality of the false certification on the
214 claims.
Moreover, Dr. Desai testified that she knew that Pinellas
could not bill for Bayfront laboratory tests until the facility was
properly licensed (though she claimed to be unsure of the precise
type of license required and of the method for obtaining it). It was
that knowledge that allegedly led her to order a hold of all Bayfront
laboratory test claims. And both Dr. Desai’s husband, who helped
her run Pinellas, and Pinellas’ office manager, Illiana Bolton, testi-
fied that they generally knew that a laboratory is required to have
a CLIA certificate to bill Medicare. That testimony, though not
dispositive, is also relevant to the materiality inquiry. See Escobar,
136 S. Ct. at 2003 (explaining that it is relevant that “the defendant
knows that the Government consistently refuses to pay claims in
the mine run of cases based on noncompliance with the particular
statutory, regulatory, or contractual requirement”).
Finally, Pinellas contends that its failure to obtain a CLIA
certificate for Bayfront was a minor, administrative error. In that
vein, one factor in the materiality inquiry is whether the
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requirement at issue goes to the essence of the bargain with the
government—i.e., whether the requirement is a central part of the
regulatory program. See Bibby, 987 F.3d at 1347–48.
According to Pinellas, what the United States would con-
sider important in determining whether to pay its claims is that
Bayfront had a preexisting CLIA certificate, and that it was provid-
ing cancer patients with laboratory tests necessary to start chemo-
therapy. That may be one way of looking at things, but it is not
the only way. In our view, there is sufficient evidence in the record
for the jury to find that the United States would find a lack of com-
pliance with the CLIA certificate requirement important when de-
ciding whether to pay Pinellas’ claims. For example, the United
States did not pay Pinellas’ initially submitted claims, which lacked
a CLIA certificate number, or the second set of claims, which con-
tained Park Place’s CLIA certificate number but not its address. Pi-
nellas’ internal emails—directing that, to obtain payment from
Medicare, the claims would be refiled with Park Place’s address—
are also indicative of the importance of CLIA certification. So too
is the fact that the Florida agency that regulated the CLIA program
within the state closed Bayfront in October of 2015 upon learning
that it had been operating without a CLIA certificate.
Pinellas relies on United States ex rel. Spay v. CVS Caremark
Corp., 875 F.3d 746, 764–65 (3d Cir. 2017), in which the Third Cir-
cuit held that minor, insubstantial misstatements did not violate
the FCA. Pinellas maintains that, as in Spay, the United States here
paid for services that were in fact provided, and that, like the Third
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Circuit in Spay, we should hold that its misstatements are the type
of minor violations that do not give rise to liability under the FCA.
Pinellas, however, misreads Spay.
The Third Circuit’s materiality determination in Spay was
based on the fact that Medicare knew of the relevant inaccuracies
and nevertheless paid the claims. See id. at 763–65. More precisely,
the defendant in Spay, a pharmacy chain, submitted prescription
reimbursement claims to Medicare that contained dummy pre-
scriber identification numbers. See id. at 750–51. It did so because
it often lacked the real, unique identification numbers for prescrib-
ing physicians, and the electronic claims system would reject
claims submitted without that unique identification number. See
id. at 750, 764. There was no dispute that the prescriptions filled
by the defendant had been issued by properly licensed prescribers.
Medicare knew of the difficulties that pharmacies were facing
when obtaining prescribers’ unique identification numbers, and it
knowingly paid claims containing dummy prescriber identification
numbers because it did not want the prescriptions of Medicare re-
cipients to be rejected. See id. at 764. Based on that evidence, the
Third Circuit held that the defendant’s violation of the requirement
that claims include true, unique prescriber identification numbers
was not material to the United States’ decision to pay the claims.
See id. at 763–65. That analysis was, of course, based on the evi-
dence available in the Spay record, and there is no similar evidence
here.
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20 Opinion of the Court 20-10276
In sum, there was sufficient evidence for the jury to have
found that, had Medicare known of Pinellas’ misrepresentations, it
would not have paid the refiled reimbursement claims. We there-
fore reject Pinellas’ challenge to the verdict.
D
Pinellas submits that the evidence does not demonstrate
that it acted knowingly. According to Pinellas, it was confused
about the proper procedure for obtaining a CLIA certificate for
Bayfront, and until it cleared up that confusion it was unaware that
it could not use Park Place’s CLIA certificate number for laboratory
tests conducted at Bayfront. As Pinellas sees it, the 214 claims for
which it was found liable should be chalked up to “honest mistakes
or negligent claims,” which is insufficient to satisfy the FCA’s sci-
enter element. We disagree with Pinellas’ arguments on this point
as well.
Liability under the FCA arises only when a defendant acted
“knowingly.” See §§ 3729(a)(1)(A) & (a)(1)(B); Urquilla-Diaz v.
Kaplan Univ., 780 F.3d 1039, 1058 (11th Cir. 2015). The FCA de-
fines the term “knowingly” to “mean that a person, with respect to
information . . . . (i) has actual knowledge of the information; . . . .
(ii) acts in deliberate ignorance of the truth or falsity of the infor-
mation; or . . . . (iii) acts in reckless disregard of the truth or falsity
of the information.” § 3729(b)(1)(A). A defendant need not, how-
ever, have acted with the specific intent to defraud the United
States. See § 3729(b)(1)(B).
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20-10276 Opinion of the Court 21
Reckless disregard is the lowest scienter threshold under the
FCA. See Urquilla-Diaz, 780 F.3d at 1058 n.15. As a result, so long
as a reasonable jury could have found that Pinellas acted with reck-
less disregard of the truth or falsity of the relevant information, we
must uphold the verdict.
Under the FCA, reckless disregard is tantamount to gross
negligence. See id. at 1058. When Congress added reckless disre-
gard to the FCA’s scienter element in 1986, it intended to capture
“the ostrich type situation where an individual has buried his head
in the sand and failed to make simple inquiries which would alert
him that false claims are being submitted.” Id. (internal quotation
marks omitted). So, a person acts with reckless disregard—and
thus “knowingly”—under the FCA when he “knows or has reason
to know of facts that would lead a reasonable person to realize that
harm is the likely result of the relevant act.” Id. (internal quotation
marks omitted).
In this case there was sufficient evidence for the jury to find
that Pinellas acted with reckless disregard of the truth or falsity of
the information it included in the 214 claims for which it was found
liable. Take, for example, the testimony of Dr. David Dresdner,
the former owner of Bayfront. He testified that after he sold his
practice to Pinellas, his laboratory manager offered Dr. Desai assis-
tance in obtaining a CLIA certificate, but Dr. Desai rejected the of-
fer, stating that she knew the process for obtaining one. Moreover,
Ms. Valentin’s May 9th email shows that Pinellas was aware that
Medicare was denying the claims it submitted with Park Place’s
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22 Opinion of the Court 20-10276
CLIA certificate number. The solution provided in that email was
to change the location of service to Park Place’s address until the
CLIA certificate issue was “fixed”—i.e., while the issue remained
“unfixed”—and to refile the claims. Ms. Valentin’s July 14th email
acknowledged that Pinellas had not yet obtained the proper CLIA
certificate for Bayfront and likewise explained that the solution was
to change the location of service to Park Place’s address and refile
the claims. And Ms. Yates testified on redirect that she heard Dr.
Desai and her husband say that they knew that they could not bill
Medicare for laboratory tests conducted at an uncertified labora-
tory.
Broadly speaking, Pinellas presents two arguments on scien-
ter. The first is that it believed that it could transfer Bayfront’s
CLIA certificate to Park Place. The second is that Dr. Desai had
ordered the billing department to hold all Bayfront claims until the
transfer was completed.
The first argument misses the point. Whether Pinellas be-
lieved (mistakenly or not) that it could transfer Bayfront’s pre-ex-
isting CLIA certificate does not negate the fact that before Bayfront
possessed a valid CLIA certificate (irrespective of the proper
method of acquisition) Pinellas filed Medicare claims for laboratory
tests conducted there. The question is whether Pinellas acted with,
at least, reckless disregard of the truth or falsity of the certification
of compliance that the use of Park Place’s CLIA certificate number
and address entailed. The record evidence is sufficient for the jury
to find that it did.
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20-10276 Opinion of the Court 23
The second argument—that Dr. Desai had ordered the bill-
ing department to hold all Medicare claims for Bayfront laboratory
tests—fares little better. Though Dr. Desai testified that she issued
such a hold, Ms. Yates contradicted that testimony. We recognize
that Ms. Bolton corroborated Dr. Desai’s testimony, but Dr. Desai
was copied on both the May 9th and July 14th emails that explained
the procedure for altering the information on the rejected Bayfront
reimbursement claims and refiling them, and she never objected to
those directions. In short, whether a hold was issued, and if so,
what the hold said about Pinellas’ knowledge, were quintessential
jury issues, and “[i]t is for the jury—not for us or the district court—
to weigh conflicting evidence and inferences and determine the
credibility of witnesses.” Mamani v. Sanchez Bustamante, 968 F.3d
1216, 1230 (11th Cir. 2020) (internal quotation marks omitted).
Viewed in the light most favorable to the verdict, the evi-
dence on scienter is not overwhelmingly in favor of Pinellas. The
jury’s decision therefore stands.
E
In addition to challenging the verdict on liability, Pinellas
asks us to overturn the jury’s finding that the United States suffered
$755.54 in damages. According to Pinellas, the measure of dam-
ages in an FCA action is the difference between the market value
of the product or service that the United States received and the
market value of the promised product or service. In this case, there
is no dispute that Pinellas conducted the laboratory tests for which
it billed Medicare. Therefore, Pinellas says, the United States
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24 Opinion of the Court 20-10276
received the benefit that it bargained for and suffered no damages
by paying the fraudulent claims. Though superficially attractive,
the argument fails.
A person who violates the FCA is liable to the United States
for “3 times the amount of damages which the Government sus-
tains because of the act of that person.” § 3729(a)(1). But “there is
no set formula for determining the government’s actual damages.”
United States v. Killough, 848 F.2d 1523, 1532 (11th Cir. 1988).
That is because “‘[f]raudulent interference with the government’s
activities damages the government in numerous ways that vary
from case to case.’” Id. (quoting S. Rep. No. 96-615, at 4 (1980)).
In the context of a product or service that is provided to the
United States, courts have indeed measured damages by compar-
ing the market value of the delivered product or service with that
of the product or service that was promised. See, e.g., United
States v. Bornstein, 423 U.S. 303, 316 n.13 (1976); United States ex
rel. Wall v. Circle C Constr., LLC, 868 F.3d 466, 470 (6th Cir. 2017);
Science Applications, 626 F.3d at 1278. But in the context of Medi-
care claims, where no product or service is provided to the United
States, courts have measured damages as the difference between
what the government paid and what it would have paid had the
defendant’s claim been truthful and accurate. See United States v.
Mackby, 339 F.3d 1013, 1018 (9th Cir. 2003); United States ex rel.
Drakeford v. Tuomey, 792 F.3d 364, 386 (4th Cir. 2015); United
States v. Rogan, 517 F.3d 449, 453 (7th Cir. 2008). The rationale is
that, had the defendant truthfully admitted that it was non-
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20-10276 Opinion of the Court 25
compliant, the United States would not have paid. See Rogan, 517
F.3d at 453. For a number of reasons, we believe that the proper
measure of damages here is the difference between what the
United States paid and what it would have paid had Pinellas’ claims
been truthful.
Pinellas’ argument that the United States fully received what
it bargained for—because the billed-for laboratory tests were con-
ducted—suffers from a conceptual conflict with our post-Escobar
understanding of materiality. In Escobar, the Supreme Court re-
jected the notion that a false claim is material if the United States
merely could refuse payment if it were aware of the violation—
irrespective of whether it did or would. See Escobar, 136 S. Ct. at
2003. Instead, the Court held that “materiality look[s] to the effect
on the likely or actual behavior of the recipient of the alleged mis-
representation.” See id. at 2002 (internal quotation marks omit-
ted).
Given what Escobar held, ruling that the United States did
not incur damages when it in fact paid for claims that it would not
have paid had they been truthful is difficult to square with a finding
that a false statement or representation is material. Indeed, Pinel-
las’ argument ignores the implicit, necessary conclusion of the
jury’s materiality finding—that CLIA certification is a considerable
part of what the United States expected and bargained for.
In Killough we rejected an argument similar to Pinellas’—
that outside of the context of the delivery of a product or service to
the United States, damages can be determined based on the value
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26 Opinion of the Court 20-10276
purportedly provided to the United States. Killough involved a
kickback scheme in the awarding of government contracts to build
mobile homes in the aftermath of a hurricane. See Killough, 848
F.2d at 1525. Officials responsible for awarding contracts would
solicit kickbacks and, to generate money for the kickbacks, contrac-
tors would submit inflated invoices. See id. We held that, though
there is no set formula for calculating the United States’ damages
in an FCA action, the proper measure of damages there was “the
difference between what the government actually paid on the
fraudulent claim and what it would have paid had there been fair,
open and competitive bidding.” Id. at 1532. We rejected the de-
fendants’ argument that because the bids of the contractors who
had not participated in the scheme were at least as expensive as
those of the corrupt contractors, the United States had suffered no
damages when contracts were awarded to the corrupt contractors.
See id. Hence, instead of ruling that the United States had suffered
$0 in damages, we affirmed the jury’s finding that it had suffered
$633,000 in damages. See id.The similarities between this case and Mackby, Drakeford,
and Rogan persuade us that the damages analysis in those cases fit
here. Like this case, Mackby, Drakeford, and Rogan involved the
submission of Medicare reimbursement claims and the false certi-
fication of compliance with a condition required for payment. See
Mackby, 339 F.3d at 1014–15 (compliance with requirement that
physical therapy be rendered by a physician, a qualified employee
of a physician, a physician-directed clinic, or a qualified physical
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20-10276 Opinion of the Court 27
therapist); Drakeford, 792 F.3d at 386 (compliance with the Stark
Amendments to the Medicare Act); Rogan, 517 F.3d at 452–453
(same). Each case explained that the proper measure of damages
is the difference between what the United States paid and what it
would have paid had the claims been truthful and accurate. See
Mackby, 339 F.3d at 1018–19; Drakeford, 792 F.3d at 386–87;
Rogan, 517 F.3d at 453. And each case held that the difference was
the full amount that the United States paid because, had the de-
fendants truthfully admitted that they were non-compliant, the
United States would not have paid.
As a result, we think that the proper measure of damages in
this case is the difference between what the United States paid and
what it would have paid had Pinellas’ claims been truthful. The
jury found that amount to be $755.54, the sum paid by the United
States on Pinellas’ third set of false claims. Because the jury could
have found that the United States would have paid nothing had Pi-
nellas’ claims been truthful and accurate, we affirm its finding on
damages.
F
We conclude our analysis of Pinellas’ challenge to the jury’s
verdict by addressing one final set of arguments. In addition to its
more general challenges, Pinellas also contests discrete subsets of
the 214 claims on which the jury based its verdict. According to
Pinellas, these claim subsets are either not false, not material, or
neither false nor material. The parties debated those matters in
supplemental briefing on Pinellas’ motion for remittitur, and the
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28 Opinion of the Court 20-10276
district court ruled in favor of Ms. Yates. Reviewing for abuse of
discretion, see Moore v. Appliance Direct, Inc., 708 F.3d 1233, 1237
(11th Cir. 2013), we affirm the district court’s ruling on Pinellas’
tailored challenges.
Pinellas first argues that 18 claims should be excised from
the verdict because they do not contain Park Place’s CLIA certifi-
cate number or its address. The factual premise of Pinellas’ argu-
ment is simply not true—each of those claims includes Park Place’s
CLIA certificate number and some also include Park Place’s ad-
dress. We know because we looked. Pinellas similarly claims that
four claims were not submitted to Medicare. That is also untrue—
each one was indeed submitted.
In addition, Pinellas contends that 58 claims did not include
charges for one type of laboratory test—a complete blood count
test. In the district court, Ms. Yates responded that all but two of
those claims included charges for complete blood count tests. Our
review of the record convinces us that Ms. Yates was right. The
remaining two claims, Ms. Yates explained, included charges for
other laboratory tests that also require a CLIA certificate. On ap-
peal, Pinellas does not explain why the district court erred in ruling
for Ms. Yates on those two claims. It has therefore abandoned any
argument related to them. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681 (11th Cir. 2014).
Finally, Pinellas identifies 21 claims that were submitted to
Medicare more than once and characterizes them as duplicates.
What exactly Pinellas argues is unclear. To the extent that Pinellas
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20-10276 Opinion of the Court 29
implies that imposing liability for those claims constitutes double-
dipping, Ms. Yates correctly explained below that Pinellas submit-
ted the claims to Medicare more than once, and thus that each
claim constitutes a distinct request for payment. Insofar as Pinellas
argues that the 21 claims are not material, we disagree for the rea-
sons we have laid out earlier.
IV
Having finished the heavy lift of analyzing Pinellas’ chal-
lenges to the jury’s verdict, we turn to its challenge of the total
monetary award. To recall, the monetary award of $1,179,266.62
is comprised of $2,266.62 in treble damages and $1,177,000.00 in
statutory penalties ($5,500 per violation).
Whether a particular FCA monetary award violates the
Eighth Amendment’s Excessive Fines Clause is a legal question
subject to plenary review. See United States v. Bajakajian, 524 U.S.
321, 336 (1998). The parties dispute whether the Eighth Amend-
ment’s Excessive Fines Clause applies to the monetary award, and,
if it does, whether the award constitutes an excessive fine. They
also disagree about whether Ms. Yates’ share of the monetary
award should be decreased.
A
There are two civil enforcement mechanisms under the
FCA (other than a private right of action for retaliation). The
United States can initiate a civil action, see § 3730(a), or a private
plaintiff (called a relator) can initiate a civil action on behalf of the
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30 Opinion of the Court 20-10276
United States, see § 3730(b)(1), in what is referred to as a qui tam
suit. There are, in turn, two classes of qui tam actions under the
FCA: one in which the United States intervenes and thereby be-
comes the primary party responsible for prosecuting the suit, and
one in which the United States chooses to not intervene. See
§§ 3730(b)(1) & (c)(1). The case before us is a qui tam action filed
by Ms. Yates, as the relator, in which the United States chose to not
intervene.
The Eighth Amendment provides that: “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const., amdt. 8. The Supreme Court
has held that “[t]he Excessive Fines Clause limits the government’s
power to extract payments, whether in cash or in kind, as punish-
ment for some offense.” Austin v. United States, 509 U.S. 602, 609–
10 (1993) (internal quotation marks omitted). So punitive damages
awarded in civil disputes between private parties are not subject to
the Eighth Amendment’s proscription on excessive fines. See
Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc.,
492 U.S. 257, 260, 268, 275 (1989). 4
Though the United States is not a formal party in a non-in-
tervened qui tam action, in such a case the relator prosecutes the
suit “in the name of the [United States],” see § 3730(b)(1), as a
4Punitive damages awarded in litigation between private parties, however,
must satisfy due process standards. See BMW of N.A., Inc. v. Gore, 517 U.S.
559, 568–86 (1996).
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20-10276 Opinion of the Court 31
partial assignee of the United States’ damages claim. See Vermont
Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765,
773 (2000). And in a non-intervened qui tam action, the United
States generally receives between 70 and 75 percent of the recov-
ery, with the relator receiving the rest. See § 3730(d)(2). Non-in-
tervened FCA qui tam actions therefore fall in a grey area between
disputes amongst purely private parties and disputes pitting the
United States against a private party.
The Supreme Court has left open whether the Excessive
Fines Clause applies to non-intervened FCA qui tam actions. See
Browning-Ferris, 492 U.S. at 275 n.21; Austin, 509 U.S. at 607 n.3.
None of our sister circuits has directly answered that question. Cf.
Hays v. Hoffman, 325 F.3d 982, 992 (8th Cir. 2003) (stating in dicta,
in a qui tam action in which the United States had not intervened
at the district court, that FCA penalties are encompassed by the Ex-
cessive Fines Clause). At least one district court, however, has pro-
vided an affirmative answer. See United States ex rel. Smith v. Gil-
bert Realty Co., Inc., 840 F. Supp. 71, 74 (E.D. Mich. 1993) (holding
that the Excessive Fines Clause applies to a non-intervened qui tam
action because it “is brought in the name of the United States by a
private party[, and] [t]he Government will share in the proceeds”).
We likewise answer the question in the affirmative, and hold that
the damages and statutory penalties awarded in a non-intervened
FCA qui tam action are subject to the Eighth Amendment’s prohi-
bition on excessive fines.
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32 Opinion of the Court 20-10276
We first explain why an FCA monetary award is a “fine” for
purposes of the Eighth Amendment. We then conclude that it is
the United States that imposes such a fine in a non-intervened qui
tam action.5
1
The Excessive Fines Clause applies only to “fines,” i.e., “pay-
ment[s] to a sovereign as punishment for some offense.” Ba-
jakajian, 524 U.S. at 327 (internal quotation marks omitted). We
must therefore decide whether an FCA monetary award is a fine
for the purposes of the Excessive Fines Clause. We conclude that
it is.
A payment constitutes a fine so long as “it can only be ex-
plained as serving in part to punish.” Austin, 509 U.S. at 610. See
also Bajakajian, 524 U.S. at 328. In Stevens, the Supreme Court
explained that the FCA’s treble damages and statutory penalties
“are essentially punitive in nature.” Stevens, 529 U.S. at 784–86. It
noted that “[t]he very idea of treble damages reveals an intent to
punish past, and to deter future, unlawful conduct, not to amelio-
rate the liability of wrongdoers.” Id. at 786. That is even more true
of the FCA’s statutory penalties—which are preset by Congress and
compulsory irrespective of the magnitude of the financial injury to
the United States, if any. See § 3279(a)(1); Killough, 848 F.2d at5 In addition to the FCA, at least one other federal statute authorizes qui tam
actions. See 25 U.S.C. § 201 (providing a cause of action and share of recovery
against a person who violates Indian protection laws). We do not address that
statute today, as it is not before us.
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20-10276 Opinion of the Court 33
1533. And though FCA treble damages have a compensatory as-
pect, see Cook County v. United States ex rel. Chandler, 538 U.S.
119, 130 (2003), FCA monetary awards are, at least, partially puni-
tive. In fact, the Ninth, Eighth, and Fourth Circuits have all ac-
cepted that FCA monetary awards are fines for the purposes of the
Excessive Fines Clause, precisely because they are at least in part
punitive. See United States v. Mackby, 261 F.3d 821, 830–31 (9th
Cir. 2001); United States v. Aleff, 772 F.3d 508, 512 (8th Cir. 2014);
Drakeford, 792 F.3d at 387–89. We join those circuits today and
hold that FCA monetary awards constitute fines for the purposes
of the Excessive Fines Clause.
2
“The Excessive Fines Clause limits the government’s power
to extract payments, whether in cash or in kind, as punishment for
some offense.” Austin, 509 U.S. at 609–10 (internal quotation
marks omitted). That is because the object of the Eighth Amend-
ment is “to prevent the government from abusing its power to pun-
ish.” Id. at 607. Consequently, the Excessive Fines Clause applies
only to payments imposed by the United States (or the States) and
payable to it (or them). See id. at 606–07; Browning-Ferris, 492 U.S.
at 264. 6
6The Excessive Fines Clause has been incorporated, and is thus applicable to
the States, through the Due Process Clause of the Fourteenth Amendment.
See Timbs v. Indiana, 139 S. Ct. 682, 687 (2019).
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34 Opinion of the Court 20-10276
We have no difficulty concluding that the monetary award
in a non-intervened FCA qui tam action meets the second prong of
the Supreme Court’s Eighth Amendment framework. In a non-
intervened action, the United States generally receives between 70
and 75 percent of the recovery, but its share can be even greater in
some circumstances. See §§ 3730(d)(2) & (3). The question is
whether the monetary award in a non-intervened qui tam action is
imposed by the United States. See Austin, 509 U.S. at 607. For the
following reasons, we conclude that that it is.
First, all monetary awards in FCA qui tam actions are im-
posed by the United States because they are mandated by the FCA,
a federal law enacted by Congress. Ms. Yates argues that the mon-
etary award here was not imposed by the United States because it
was not a party to the proceedings below. But that argument ig-
nores that the Excessive Fines Clause challenge here is aimed at the
application of the FCA, and not simply the litigation behavior of a
private party. Ms. Yates is correct that the Eighth Amendment
serves as a check on the power of the sovereign, but Goliath (to use
her term) acted by mandating through federal law—the FCA—the
imposition of treble damages and statutory penalties. See § 3729(a).
For all the ink spilled on the identity of the formal party in a
non-intervened action, this case involves what Chief Justice Mar-
shall called “a proposition too plain to be contested.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The FCA is a federal
enactment, and therefore it must comply with the Constitution.
See id. at 180 (“[A] law repugnant to the constitution is void; and [
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20-10276 Opinion of the Court 35
] courts, as well as other departments, are bound by that instru-
ment.”) (emphasis altered from original). See also United States v.
Comstock, 560 U.S. 126, 135 (2010) (“[A] federal statute . . . must .
. . not [be] prohibited by the Constitution.”) (internal quotation
marks omitted). Indeed, the subjection of statutes to the Constitu-
tion is the premise that undergirds the doctrine of judicial review.
See Marbury, 5 U.S. at 176–80. See also Natl. Fedn. of Indep. Bus.
v. Sebelius, 567 U.S. 519, 538 (2012) (explaining that because the
powers of Congress are defined and limited by the Constitution, “it
is the responsibility of [the judiciary] to enforce the limits on federal
power by striking down acts of Congress that transgress those lim-
its”).
As we have explained, FCA monetary awards are fines—i.e.,
they constitute payment to the United States as punishment (or at
least in part as punishment) for an offense. See Bajakajian, 524 U.S.
at 327. That conclusion cannot be reconciled with the theory that
such fines are not imposed by the United States simply because
Congress ordered their imposition irrespective of the Executive’s
decision whether to intervene. That imposition and the fact that
the United States receives the bulk of the monetary award are the
direct result of government action. Cf. Lugar v. Edmondson Oil
Co., Inc., 457 U.S. 922, 941 (1982) (“[T]he procedural scheme cre-
ated by the statute obviously is the product of [government] ac-
tion.”). Pinellas’ challenge is to the FCA as applied, and accordingly
it is a challenge precisely about whether the United States
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36 Opinion of the Court 20-10276
overstepped its constitutional bounds. That claim is fully within
the purview of the Excessive Fines Clause.
Second, even if we accept Ms. Yates’ premise that we should
focus only on the government’s lack of formal party status in non-
intervened qui tam actions, we conclude that any resulting mone-
tary award is imposed by, and attributable to, the United States.
Unlike a traditional private party, a relator does not initiate an FCA
action to recover for an injury she herself suffered. She is instead
filing suit on behalf of the United States, see § 3730(b)(1), for a fraud
committed against the United States, see § 3730(a), and as a partial
assignee of the United States’ damages claim. See Stevens, 529 U.S.
at 773. Indeed, “[a] qui tam relator has suffered no [ ] invasion [of
a legally protected right],” and it is “the United States’ injury [that]
suffices to confer standing on [the relator].” Id. at 773, 774. In
short, “the private plaintiff is merely acting as a stand-in for the
government.” Makro Capital of America, Inc. v. UBS AG, 543 F.3d
1254, 1260 (11th Cir. 2008). Though the United States is not a for-
mal party to a non-intervened qui tam action, it remains a real party
in interest. See United States ex rel. Eisenstein v. City of New York,
556 U.S. 928, 934–36 (2009). Consequently, “the fact that the gov-
ernment delegates some portion of [its] power to private litigants
does not change the governmental character of the power exer-
cised.” Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 626
(1991).
To the extent that an FCA relator must be considered a gov-
ernment actor of some kind to trigger the Eighth Amendment,
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20-10276 Opinion of the Court 37
such a requirement is satisfied here. Courts consider private per-
sons to be government actors when they perform “a function
which is traditionally the exclusive prerogative of the state.” An-
cata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985)
(finding state action in the provision of medical services in a prison
by a private provider). See Harper v. Prof. Probation Servs. Inc.,
976 F.3d 1236, 1240 n.5 (11th Cir. 2020) (finding state action where
a private party was delegated the judicial function of the state).
Here, the traditional, exclusive function of the government
is the protection of the public fisc. See United States v. Hughes
Properties, Inc., 476 U.S. 593, 603 (1986) (“[T]he major responsibil-
ity of the Internal Revenue Service is to protect the public fisc.”);
Wilkins v. Gaddy, 734 F.3d 344, 351 (4th Cir. 2013) (“Protection of
the public fisc is a core responsibility of the legislative branch.”).
The FCA’s qui tam provisions merely grant the United States the
flexibility to do so effectively through an avatar in litigation. See
United States ex rel. Bunk v. Gosselin World Wide Moving, N.V.,
741 F.3d 390, 406 (4th Cir. 2013) (“[T]he FCA was crafted in ac-
knowledgment of the flexibility typically afforded the government
to right a public wrong.”); United States v. Northrop Corp., 59 F.3d
953, 968 (9th Cir. 1995) (“The relator’s right to recovery exists
solely as a mechanism for deterring fraud and returning funds to
the federal treasury.”) (emphasis omitted). That a private litigant
acts as a “collection agent for the government” does not negate the
fact that the United States imposes the monetary award for the
harm to the public fisc. See Nancy J. King, Portioning Punishment:
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38 Opinion of the Court 20-10276
Constitutional Limits on Successive and Excessive Penalties, 144 U.
Pa. L. Rev. 101, 180 (1995).
Furthermore, the United States exercises sufficient control
in non-intervened qui tam actions that it imposes any resulting
monetary award. At the beginning of a non-intervened qui tam
action, the United States possesses significant procedural rights that
allow it to decide whether to intervene. A relator who files a qui
tam complaint under the FCA must do so under seal and serve it
only on the United States. See § 3730(b)(2). While the lawsuit re-
mains under seal, the United States may serve a civil investigative
demand upon any person believed to be in possession of docu-
ments or information relevant to an investigation of false claims,
which would require that person to produce documents, answer
interrogatories, or give oral testimony. See § 3733(a)(1). And “the
United States may meet with the relator and her attorney, giving
the government an opportunity to ask questions to assess the
strengths and weaknesses of the case and the relator a chance to
assist the government’s investigation.” United States ex rel. Hunt
v. Cochise Consultancy, Inc., 887 F.3d 1081, 1086 (11th Cir. 2018).
Finally, in non-intervened qui tam actions, the relator has primary
responsibility to assert the rights of the United States only because
the latter allows it to do so by declining to intervene. See §§
3730(b)(2) & (b)(3).
And “even in cases where the government does not inter-
vene, there are a number of control mechanisms present in the qui
tam provisions of the FCA so that the Executive nonetheless retains
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20-10276 Opinion of the Court 39
a significant amount of control over the litigation.” Riley v. St.
Luke’s Episcopal Hosp., 252 F.3d 749, 753 (5th Cir. 2001) (en banc)
(rejecting an Article II challenge to the FCA’s qui tam provisions).
The United States retains the right to request to intervene at any
time, a request that may be granted for good cause. See §
3730(c)(3). It can also request to be served with copies of all plead-
ings and supplied copies of all deposition transcripts. See id. The
United States can obtain a stay of discovery if it “would interfere
with the Government’s investigation or prosecution of a criminal
or civil matter arising out of the same facts.” § 3730(c)(4). Signifi-
cantly, the relator cannot dismiss her qui tam action unless the
United States consents in writing. See § 3730(b)(1).
We have already recognized and relied on the substantial
control that the United States possesses over non-intervened FCA
qui tam actions in other contexts. In Hunt, for example, we held
that a subsection of the FCA’s statute of limitations provision ap-
plies in non-intervened qui tam cases. See Hunt, 887 F.3d at 1092.
That provision, § 3731(b)(2), limits the time to file suit to “3 years
after the date when facts material to the right of action are known
or reasonably should have been known by the official of the United
States charged with responsibility to act in the circumstances.” The
appellees in Hunt argued that § 3731(b)(2) did not apply in non-in-
tervened actions because it would be absurd to have a knowledge-
based limitations period depend on a non-party’s knowledge. See
id. at 1091. We rejected the opinions of courts that had agreed with
the appellees’ theory, explaining that “[t]hey reflexively applied the
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40 Opinion of the Court 20-10276
general rule that a limitations period is triggered by the knowledge
of a party [while] fail[ing] to consider the unique role that the
United States plays even in a non-intervened qui tam case.” Id. at
1092. Instead, we concluded that § 3731(b)(2) applies to non-inter-
vened qui tam suits because “the United States remains the real
party in interest and retains significant control over the case.” Id.
at 1091.
The United States maintains this control at the remedy
phase of qui tam proceedings. “Any recovery obtained from a de-
fendant in an FCA qui tam action belongs to the United States.” Id.
at 1087. Thus, as noted above, the United States receives the lion’s
share of the monetary award in a non-intervened qui tam action.
See § 3730(d)(2). The relator, in contrast, receives a small share of
the award as a bounty for prosecuting the action on the United
States’ behalf. See Stevens, 529 U.S. at 772. In certain instances,
the FCA even augments the portion of the monetary award that
the United States receives. See § 3730(d)(3).
Such is the United States’ grip that, subject to court ap-
proval, even in a non-intervened action it “may settle the action
with the defendant notwithstanding the objections of the person
initiating the action [i.e., the relator].” § 3730(c)(2)(B). Our deci-
sion in United States v. Everglades College, Inc., 855 F.3d 1279(11th Cir. 2017), is instructive in this regard. In Everglades College,
the relators had been successful in a non-intervened action. See id.
at 1282. Believing that they deserved a larger monetary award, the
relators appealed. See id. at 1284. During the pendency of the
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20-10276 Opinion of the Court 41
appeal, the United States settled with one of the defendants, secur-
ing a larger sum than the one the relators had obtained. See id. at
1284–85. But the relators thought that they could obtain an even
larger sum, so they also appealed the district court’s approval of the
settlement. See id. at 1285, 1289. We upheld the United States’
settlement. See id. at 1289. We held that when the United States
steps in to settle a non-intervened FCA qui tam action after trial, it
need not show good cause. See id. at 1285. We also noted that its
decision to settle could be based on considerations different from a
relator’s, such as public policy, political ramifications, efficient use
of its limited prosecutorial resources, or wariness of the impact of
potential adverse appellate decisions. See id. at 1288–89. After all,
“when the government settles a qui tam case, it is agreeing to com-
promise with respect to its own injuries only, not those of the rela-
tor.” Id. at 1288. And we held that courts should grant deference
to the settlement rationale of the United States because “[its] deci-
sion to end a case through settlement is similar enough to a deci-
sion to dismiss the case—a choice committed to the discretion of
the Executive Branch.” Id.Precisely because of the United States’ significant control
over FCA qui tam actions, our sister circuits have held that they do
not violate (i) Article II’s Take Care Clause, see Riley, 252 F.3d at753–57; (ii) the principle of separation of powers, see United States
ex rel. Kelly v. Boeing Co., 9 F.3d 743, 749–57 (9th Cir. 1993);
United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41
F.3d 1032, 1041 (6th Cir. 1994); United States ex rel. Kreindler &
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42 Opinion of the Court 20-10276
Kreindler v. United Techs. Corp., 985 F.2d 1148, 1154–56 (2d Cir.
1993); or (iii) the States’ Eleventh Amendment immunity, see
United States. ex rel. Milam v. U. of Texas M.D. Anderson Cancer
Ctr., 961 F.2d 46, 48–49 (4th Cir. 1992). 7
Those constitutional issues are not before us, so we take no
position on our sister circuits’ ultimate conclusions. We think
those cases are nevertheless relevant due to their reliance on the
United States’ substantial control over FCA qui tam actions. See
Riley, 252 F.3d at 753 (“[T]hough Congress has historically allowed
alternative mechanisms of fraud enforcement against the federal
government, this state of affairs does not therefore mean that the
Executive’s functions to control such litigation are necessarily im-
pinged . . . . [T]he Executive retains significant control over litiga-
tion pursued under the FCA by a qui tam relator.”); Kreindler, 985
F.2d at 1155 (“[T]he FCA qui tam provisions do not usurp the ex-
ecutive branch’s litigating function because the statute gives the ex-
ecutive branch substantial control over the litigation.”); Kelly, 9
F.3d at 757 (holding that the FCA’s qui tam provisions do not “dis-
rupt the proper balance between the branches because . . . the FCA
permits the Executive Branch to retain sufficient control over pros-
ecutorial functions”) (internal quotation marks omitted);
7 In Stevens, the Supreme Court held that States are not subject to liability
under the FCA because they are not “persons” for the purposes of the FCA.
See Stevens, 529 U.S. at 787. It left open, however, whether the Eleventh
Amendment provides immunity to States from non-intervened qui tam ac-
tions. See id. at 773 n.4.
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20-10276 Opinion of the Court 43
Taxpayers Against Fraud, 41 F.3d at 1041 (explaining that the FCA’s
qui tam provisions “have been crafted with particular care to main-
tain the primacy of the Executive Branch in prosecuting false-
claims”) (internal quotation marks omitted); Milam, 961 F.2d at 48–
49 (ruling that a non-intervened qui tam action “is [ ] a suit by the
United States” in part because of “the extensive power the govern-
ment has to control the litigation”).
The FCA itself, our interpretation of its provisions, and the
decisions of our sister circuits all point to the United States’ consid-
erable authority over intervened and non-intervened qui tam ac-
tions. Given that power, the United States still imposes an FCA
monetary award for the purposes of the Eighth Amendment, even
when it lacks formal party status.
Third, and to conclude, the history and nature of qui tam
actions support our understanding that the United States imposes
the monetary award in a non-intervened FCA action. Statutory qui
tam actions trace back to 14th-century England, when Parliament
authorized two types: those that allowed injured parties to sue to
vindicate their own interests and those of the Crown, and “those
that allowed informers to obtain a portion of the penalty as a
bounty for their information, even if they had not suffered an in-
jury themselves.” Stevens, 529 U.S. at 775. See also 3 William
Blackstone, Commentaries *160 (1768). FCA qui tam actions are
of the latter type. See Stevens, 529 U.S. at 773 (explaining that “[a]
qui tam relator has suffered no . . . invasion [of a legally protected]
right”).
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44 Opinion of the Court 20-10276
The impetus for the authorization of qui tam actions was the
truism that governments have limited resources. See J. Randy
Beck, The False Claims Act and the English Eradication of Qui Tam
Legislation, 78 N.C. L. Rev. 539, 568 (2000) (“The King, of course,
could not be in all places at all times. Nor did he have an extensive
network of paid royal officials whose loyalty to the interests of the
Crown could be assumed. . . . Parliament’s solution was to permit
qui tam enforcement of the penalty [for statutory violations].”).
Providing a share of the recovery to those who initiated qui tam
actions incentivized persons with knowledge of violations to come
forward (hence the name, “informer”). See id. In that way, “the
default method of enforcement was to induce the cooperation of
local citizens to act as the King’s agents.” Id.Statutes authorizing qui tam actions were common in the
early Republic. See Stevens, 529 U.S. at 776. The First, Second,
Third, and Fourth Congresses promulgated numerous statutes au-
thorizing qui tam actions. See id. at 776–77 nn.5–7 (listing statutes
passed by the First Congress authorizing qui tam actions); Sierra v.
City of Hallandale Beach, 996 F.3d 1110, 1125 (11th Cir. 2021)
(Newsom, J., concurring) (identifying statutes passed by the First,
Second, Third, and Fourth Congresses authorizing qui tam ac-
tions). Chief Justice Marshall noted in Adams v. Woods, 6 U.S. (2
Cranch) 336, 341 (1805), that “[a]lmost every fine or forfeiture un-
der a penal statute, may be recovered by an action of debt, as well
as by information.” In other words, qui tam actions were viewed
as a routine enforcement mechanism in the early Republic. It thus
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20-10276 Opinion of the Court 45
stands to reason that the Eighth Amendment’s prohibition on ex-
cessive fines would have been considerably circumscribed if it ex-
empted such actions.
FCA qui tam actions serve the same enforcement purpose.
The Senate Judiciary Committee’s report on the 1986 amendments
to the FCA explained that “perhaps the most serious problem
plaguing effective enforcement [of the FCA] is a lack of resources
on the part of Federal enforcement agencies.” S. Rep. 99-345, at 7.
That meant that the United States was forced to screen potential
cases based on financial considerations and was outmanned by cor-
porate defendants. See id. The treble damages and increased stat-
utory penalties “allow and encourage assistance from the private
citizenry [who] can make a significant impact on bolstering the
Government’s fraud enforcement effort.” Id. at 8. That history
“makes clear that the qui tam provisions were intended to expand
the government’s ability to prosecute wrongdoing directed at the
government by rewarding informers; they were not primarily for
the benefit of the informer.” Michael Waldman, “Damage Con-
trol”: A Defendant’s Approach to the Damage and Penalty Provi-
sions of the Civil False Claims Act, 21 Pub. Contract L.J. 131, 154
(1992).
All of this leads us to conclude that the United States’ lack of
formal party status in a non-intervened qui tam action is not dis-
positive. The United States is still imposing and receiving a penalty
for an offense committed against it. Given that reality, we will not
exalt form over substance. Accordingly, a monetary award in a
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46 Opinion of the Court 20-10276
non-intervened qui tam action is imposed by the United States. See
Austin, 509 U.S. at 607. 8
B
A fine “violates the Excessive Fines Clause if it is grossly dis-
proportional to the gravity of a defendant’s offense.” Bajakajian,
524 U.S. at 334. We hold that the monetary award (i.e., the “fine”)
imposed in this case does not violate the Excessive Fines Clause.
Before delving in, we address the parties’ debate on whether
we should consider the amount of the fine cumulatively or per-vi-
olation. Our answer is that in this case it does not matter. Seeing
a judgment of $1.179 million based on $755.54 in actual damages
may raise an eyebrow. But whatever optics inure to Pinellas’ ben-
efit by that comparison, they are negated when one realizes that
this total is the result of Pinellas’ repeated (214) instances of fraud
against the United States. The district court here imposed the low-
est-possible statutory penalty of $5,500 for all of the 214 violations,
and treble damages are mandated by the FCA. Therefore, no mat-
ter the perspective, the monetary award imposed represents the
lowest possible sanction under the FCA.
“Translating the gravity of a crime [or offense] into mone-
tary terms—such that it can be proportioned to the value of [a
8 The United States, as amicus curiae, agreed at oral argument that the Exces-
sive Fines Clause applies in this case. See Oral Arg. Tr. at 23:43–50. We are
not bound by its constitutional position, see Orloff v. Willoughby, 345 U.S. 83,
87 (1953), but based on our independent analysis we agree.
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20-10276 Opinion of the Court 47
fine]—is not a simple task.” United States v. 817 N.E. 29th Drive,
175 F.3d 1304, 1309 (11th Cir. 1999). But we have identified several,
non-exhaustive factors that guide an Excessive Fines Clause analy-
sis: (i) whether the defendant is in the class of persons at whom the
statute was principally directed; (ii) how the imposed penalties
compare to other penalties authorized by the legislature; and (iii)
the harm caused by the defendant. See United States v. Chaplin’s,
Inc., 646 F.3d 846, 851 (11th Cir. 2011). See also Bajakajian, 524
U.S. at 338–39 (considering, among other things, the three factors
we identified in Chaplin); Mackby, 339 F.3d at 1017–18 (same).
Additionally, we have recognized that “Congress, as a rep-
resentative body, can distill the monetary value society places on
harmful conduct,” and thus that “[penalties] falling below the max-
imum statutory fines for a given offense . . . receive a strong pre-
sumption of constitutionality.” Chaplin’s, 646 F.3d at 852 (internal
quotation marks omitted). See Bajakajian, 524 U.S. at 336 (“[J]udg-
ments about the appropriate punishment for an offense belong in
the first instance to the legislature.”). Because the monetary award
here is at the statutory minimum, we grant it a strong presumption
of constitutionality and proceed to determine whether Pinellas has
rebutted that presumption. We do not think it has.
For starters, Pinellas is in the class of defendants at whom
the FCA is principally directed. The FCA imposes liability on any
person who defrauds or conspires to defraud the United States. See
§ 3729(a)(1). It is the United States’ “primary litigative tool for com-
batting fraud” against it and “is intended to reach all fraudulent
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48 Opinion of the Court 20-10276
attempts to cause the Government to pay our [sic] sums of
money.” S. Rep. No. 99-345, at 2, 9. Pinellas is not in the same
position as the defendant in Bajakajian, who, by not reporting the
removal of legal currency from the United States, was subject to
forfeiture under a statute principally targeted at money launderers,
drug traffickers, or tax evaders. See Bajakajian, 524 U.S. at 338. Pi-
nellas, by submitting fraudulent claims, is squarely in the FCA’s
crosshairs. See Mackby, 339 F.3d at 1017 (finding that the defend-
ant, who submitted false reimbursement claims to Medicare, fell
among the class of persons targeted by the FCA).
Pinellas contends that it merely made an “error” in submit-
ting its claims with Park Place’s CLIA certificate number and ad-
dress, and that this error is not the type of violation at which the
FCA is directed. That, however, is merely an attempt to refashion
an evidentiary liability challenge into an Excessive Fines Clause ar-
gument. To the extent that Pinellas’ assertion is that any violations
were inadvertent, we have already upheld the jury’s finding as to
scienter. See Drakeford, 792 F.3d at 389 (rejecting an argument
that, as the defendant’s FCA violations were the result of a “mere
accident,” damages should be reduced, because the jury had al-
ready found that the defendant had acted knowingly). And if Pi-
nellas is trying to diminish the gravity of its violation, our ruling on
materiality forecloses that gambit as well. See Escobar, 136 S. Ct.
at 2003 (“Materiality . . . cannot be found where noncompliance is
minor or insubstantial.”).
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20-10276 Opinion of the Court 49
The treble damages awarded here also compare favorably to
other penalties authorized by Congress. Treble damages are au-
thorized by Congress in other statutes. See, e.g., 18 U.S.C.
§ 1964(c) (authorizing treble damages in a civil RICO suit); 15
U.S.C. § 15(a) (same for violations of the Clayton Act); 35 U.S.C. §
284 (same for patent infringement). Perhaps because of that, and
because of the negligible value of the treble damages in this case,
Pinellas does not seriously dispute their constitutionality. In any
event, we conclude that the treble damages imposed by the district
court do not compare unfavorably to other penalties authorized by
Congress.
As to the imposed statutory penalties, they are lower than
the potential maximum penalties under the FCA and other stat-
utes. At the time of Pinellas’ violations, the FCA required the im-
position of statutory penalties between $5,500 and $11,000 per vio-
lation. See § 3729(a)(1); 28 C.F.R. § 85.3(a)(9). The penalties that
the district court imposed here, based on the lowest possible statu-
tory assessment of $5,500, were half the potential maximum. See
United States v. Emerson, 107 F.3d 77, 80–81 (1st Cir. 1997) (hold-
ing that a $5,000 per-flight fine on a pilot for not possessing a proper
FAA certificate was not excessive, in part because the statutory
maximum penalty was $10,000 per flight). Moreover, in 2015 Con-
gress passed the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015, which required federal agencies to ad-
just civil payments to account for inflation. See Bipartisan Budget
Act of 2015, Pub. L. 114-74, § 701, 129 Stat. 584, 599 (2015) (codified
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50 Opinion of the Court 20-10276
at 28 U.S.C. § 2461 note). As a result of that directive, the FCA’s
statutory penalties currently stand at between $11,665 and $23,331
per violation. See 28 C.F.R. § 85.5. Thus, the statutory penalties
imposed on Pinellas are less than half the FCA’s lowest, current
statutory assessment. And they also compare well to other statu-
tory penalties authorized by Congress. For example, violations of
the Anti-Kickback Act are subject to a $23,331 statutory penalty per
violation. See 41 U.S.C. § 8706(a)(1)(B); 28 C.F.R. § 85.5. These
comparisons are not determinative, but they are relevant.
The harm caused by Pinellas, moreover, is considerable. On
this point, Pinellas tries to equate harm to the $755.54 in damages
that the United States suffered. But the harm caused by an FCA
violation is not so narrow. Indeed, if Pinellas were correct, then
the FCA would not require the imposition of statutory penalties
even when the United States does not pay a false claim. See Kil-
lough, 848 F.2d at 1533. See also Bunk, 741 F.3d at 409 (imposing
a penalty of $24 million even though the relator did not seek any
damages). Nor would the FCA impose statutory penalties on mere
conspiracy to submit a false claim. See § 3729(a)(1)(C).
Fraud harms the United States in ways untethered to the
value of any ultimate payment. For instance, we have explained
that when the United States is defrauded, “the government has
been damaged to the extent that such corruption causes a diminu-
tion of the public’s confidence in the government.” Killough, 848
F.2d at 1532. Our sister circuits have reached similar conclusions.
See, e.g., Mackby, 339 F.3d at 1019 (“Fraudulent claims make the
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20-10276 Opinion of the Court 51
administration of Medicare more difficult, and widespread fraud
would undermine public confidence in the system.”); Bunk, 741
F.3d at 409 (noting that the prevalence of fraud “shakes the public’s
faith in the government’s competence and may encourage others
similarly situated to act in a like fashion”). Fraud imposes costs on
the United States in the form of “the expense of the constant Treas-
ury vigil [it] necessitate[s].” Id. at 409 (internal quotation marks
omitted). See also Lani Anne Remick, Penalty Points, Part Three:
Constitutional Defenses, 41 False Cl. Act and Qui Tam Q. Rev. 118,
131–32 (2006).
In the context of the FCA, we also consider the deterrent
effect of a monetary award. See Mackby, 339 F.3d at 1019; Bunk,
741 F.3d at 409. In this case, the imposition of the lowest-possible
monetary award—though, as the district court noted, “very
harsh”—properly balances the need to deter potential fraudsters
with the gravity of Pinellas’ conduct. This is all the more so when
one considers that the size of the award is a direct reflection of Pi-
nellas’ repeated and knowing submission of false claims to the
United States. We agree with the Fourth Circuit that “[s]ubstantial
penalties . . . serve as a powerful mechanism to dissuade” repeated
violations of the FCA. See Drakeford, 792 F.3d at 389.
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52 Opinion of the Court 20-10276
On this record, the monetary award imposed does not vio-
late the Excessive Fines Clause. We reject Pinellas’ contrary argu-
ment. 9
C
Finally, Pinellas asks us to decrease Ms. Yates’ share of the
monetary award. Ms. Yates, who received 30 percent of the award
pursuant to an agreement with the United States, argues that Pi-
nellas does not have standing to challenge her share because it was
allocated between her and the United States. Pinellas responds that
it has standing because—unlike in Taxpayers Against Fraud, 41
F.3d at 1046, on which Ms. Yates relies—here it is not seeking to
participate in collateral litigation between the United States and a
relator.
In the district court, Pinellas sought a reduction of Ms. Yates’
share of the monetary award because she had supposedly planned
and initiated the fraudulent scheme. See § 3730(d)(3) (“[I]f the
court finds that the action was brought by a person who planned
9 In his separate opinion, Judge Tjoflat asserts that the FCA fails to provide
standards to guide a district court in choosing the appropriate penalty within
the statutory range. We do not address that issue for two reasons. First, Pi-
nellas has not based its Eighth Amendment challenge on the procedural claim
that the FCA lacks standards. Second, where—as here—the statutory mini-
mum penalty is imposed, the district court lacks the authority to go below that
minimum absent a constitutional violation. In other words, standards do not
come into play if the court is imposing only the statutory minimum penalty
mandated by Congress.
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20-10276 Opinion of the Court 53
and initiated the violation . . . , then the court may, to the extent
the court considers appropriate, reduce the share of the proceeds
of the action which the person would otherwise receive.”). As best
we can tell, Ms. Yates did not challenge Pinellas’ standing, and the
district court did not rule on Pinellas’ request. Given the proce-
dural context, rather than analyze whether the district court lacked
jurisdiction to consider Pinellas’ argument, we hold that we lack
jurisdiction to rule on Pinellas’ appeal of the allocation. See Frulla
v. CRA Holdings, Inc., 543 F.3d 1247, 1250 (11th Cir. 2008)
(“[A]lthough neither party challenges our jurisdiction, we are obli-
gated to address jurisdictional questions sua sponte.”).
The Constitution grants federal courts the power to decide
issues only in the presence of an actual controversy. See Wittman
v. Personhuballah, 136 S. Ct. 1732, 1736 (2016); Hollingsworth v.
Perry, 570 U.S. 693, 705 (2013). Consequently, a party invoking a
federal court’s jurisdiction must establish that it has standing. See
Wittman, 136 S. Ct. at 1736. That requires the party to prove that
it has suffered an injury in fact, that the injury is fairly traceable to
the challenged conduct, and that the injury will likely be redressed
by a favorable ruling. See id. Because an actual controversy must
persist during all stages of a litigation, “standing must be met by
persons seeking appellate review, just as it must be met by persons
appearing in courts of first instance.” Hollingsworth, 570 U.S. at
705 (internal quotation marks omitted). Accordingly, as in the dis-
trict court, on appeal “a litigant must seek relief for an injury that
affects him in a personal and individual way.” Id. (internal
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54 Opinion of the Court 20-10276
quotation marks omitted). Moreover, because “standing is not dis-
pensed in gross,” a litigant “must demonstrate standing for each
claim he seeks to press and for each form of relief that is sought.”
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
The amount of the total judgment that Pinellas must pay is
independent of its allocation between Ms. Yates and the United
States. Pinellas does not argue otherwise. In fact, it admits that a
reduction in Ms. Yates’ share would not reduce the total judgment
amount. As a result, Pinellas has not suffered an injury in fact, let
alone one that is fairly traceable to the allocation, and no injury
(assuming one existed) would be redressed by a ruling from us al-
tering the allocation. Pinellas therefore lacks standing to appeal the
allocation of the monetary award between Ms. Yates and the
United States, and we have no jurisdiction to rule on it. See Witt-
man, 136 S. Ct. at 1736–37 (dismissing an appeal by intervenors
who could not explain how their alleged injury would be redressed
by a favorable judicial decision).
V
We affirm the district court’s admission of Exhibit 24, the
jury’s verdict, and the total monetary award. We dismiss Pinellas’
appeal as to the allocation of the monetary award between Ms.
Yates and the United States.
AFFIRMED IN PART AND DISMISSED IN PART
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20-10276 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, joined by JORDAN, Circuit Judge, concur-
ring:
I concur in the Court’s opinion and write separately simply
to flag an issue that struck me as a little odd while working my way
through this case: In determining whether a fine set by Congress
is unconstitutionally “excessive” within the meaning of the Eighth
Amendment, we give great deference to Congress’s judgment
about the excessiveness of the fine. See United States v. Chaplin’s,
Inc., 646 F.3d 846, 852 (11th Cir. 2011). As a result, Congress both
levies the fine and, at least as a presumptive matter, determines its
constitutionality. Seems a bit like letting the driver set the speed
limit.
And it looks to me like our hyper-deferential posture toward
Congress’s judgments about excessiveness stems from some linger-
ing uncertainty about the basis for our own. In particular, from the
premise that the text and history of the Excessive Fines Clause
don’t shed much useful light on the excessiveness issue, we’ve rea-
soned to the conclusion that the issue should be left to Congress.
The logic is sound enough—I agree that inherently subjective judg-
ments are often better made elsewhere—but I’m not sure the
premise is correct. Based on my own examination, the Excessive
Fines Clause, as originally understood, directs our attention to two
discernible and instructive guideposts: (1) the proportionality be-
tween a fine and an offense, a factor that we have traditionally con-
sidered, and (2) the relationship between a fine and an offender’s
ability to pay it, one that we have not. Recovering that second part
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2 NEWSOM, J., Concurring 20-10276
of the excessiveness inquiry would make our own evaluations of
fines more objective and, by extension, alleviate any felt need to be
so deferential to Congress’s.
Let me unpack that a bit.
I
A
First, a word about the deference that we give Congress in
the excessive-fines space. We’ve held that fines “falling below the
maximum statutory fines for a given offense . . . receive a ‘strong
presumption’ of constitutionality.” Chaplin’s, 646 F.3d at 852 (quo-
tation marks omitted); see also United States v. 817 N.E. 29th
Drive, 175 F.3d 1304, 1309 (11th Cir. 1999) (“[I]f the value of for-
feited property is within the range of fines prescribed by Congress,
a strong presumption arises that the forfeiture is constitutional.”).1
In effect, then, Congress supplies an answer to the questions of
what a fine should be and whether it’s excessive. You might think
1 Some of the caselaw on this subject involves forfeitures, but the Supreme
Court has held that a forfeiture can constitute “a ‘fine’ within the meaning of
the Excessive Fines Clause.” United States v. Bajakajian, 524 U.S. 321, 334
(1998); see also Austin v. United States, 509 U.S. 602, 614 n.7 (1993) (collecting
definitions from founding-era dictionaries showing that “ ‘fine’ was under-
stood to include ‘forfeiture’ and vice versa”); Browning-Ferris Indus. of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989) (explaining “that at the
time of the drafting and ratification of the [Eighth]Amendment, the word ‘fine’
was understood to mean a payment to a sovereign as punishment for some
offense”).
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20-10276 NEWSOM, J., Concurring 3
that dynamic is strange for much the same reason that it would be
odd for us to presume that a police officer’s use of force wasn’t ex-
cessive simply because he said so.
After all, we didn’t end up with the Bill of Rights because of
the founding generation’s great faith in the powers that be. Brutus,
for one, warned that “[t]hose who have governed have been found
in all ages ever active to enlarge their powers and abridge the public
liberty.” Brutus II (Nov. 1, 1787), in 2 The Complete Anti-Federal-
ist 374 (Herbert J. Storing ed., 1981). For that reason, he argued,
the prohibitions against excessive bail, excessive fines, and cruel
and unusual punishments were “as necessary under the general
government as under that of the individual states.” Id. at 375. Pat-
rick Henry made much the same point, telling Virginia’s ratifying
convention that “when we come to punishments, no latitude
ought to be left, nor dependence put on the virtue of representa-
tives.” See Timbs v. Indiana, 139 S. Ct. 682, 696 (2019) (Thomas,
J., concurring in the judgment) (quoting 3 Debates on the Federal
Constitution 447 (J. Elliot, 2d ed. 1854)). Those critics counted.
“The concerns voiced by the Antifederalists led to the adoption of
the Bill of Rights.” Minneapolis Star & Trib. Co. v. Minn. Comm’r
of Revenue, 460 U.S. 575, 584 (1983). So far as the Eighth Amend-
ment was designed to limit the power of Congress to punish, then,
great deference to Congress’s judgments about the
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4 NEWSOM, J., Concurring 20-10276
constitutionality of the punishments it chooses might be precisely
the opposite of what the Eighth Amendment prescribes. 2
Having said that, we’ve laid out some good reasons for re-
specting Congress’s judgment on these questions. We’ve recog-
nized, for instance, that “[t]ranslating the gravity of a crime into
monetary terms . . . is not a simple task.” 817 N.E. 29th Drive, 175
F.3d at 1309. More generally, fitting a punishment to an offense
entails some tough judgment calls, the nature of which might lead
one to conclude that other branches are better suited to make
them: “The question of what acts are ‘deserving’ of what punish-
ments is bound so tightly with questions of morality and social con-
ditions as to make it, almost by definition, a question for legislative
2 As an aside, I wonder whether fines might differ from other punishments,
such that the degree of deference we give congressional judgments concerning
them ought to differ, too:
There is good reason to be concerned that fines, uniquely of
all punishments, will be imposed in a measure out of accord
with the penal goals of retribution and deterrence. Imprison-
ment, corporal punishment, and even capital punishment cost
a State money; fines are a source of revenue. As we have rec-
ognized in the context of other constitutional provisions, it
makes sense to scrutinize governmental action more closely
when the State stands to benefit.
Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991) (opinion of Scalia, J.). I see
no reason why that concern should be unique to fines imposed by states.
Every government needs revenue, of course.
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20-10276 NEWSOM, J., Concurring 5
resolution.” Graham v. Florida, 560 U.S. 48, 120 (2010) (Thomas,
J., dissenting).
Furthermore, since the “Eighth Amendment does not man-
date adoption of any one penological theory,” Graham, 560 U.S. at
71 (majority op.) (quotation marks omitted), Congress is generally
free to select punishments with an eye to retribution, deterrence,
or rehabilitation, etc., or various combinations thereof. And Con-
gress’s freedom is our constraint—the Eighth Amendment gives us
no power to displace Congress’s choices simply because we’d have
made different ones. Cf. Coker v. Georgia, 433 U.S. 584, 592 (1977)
(plurality op.) (“[T]hese Eighth Amendment judgments should not
be, or appear to be, merely the subjective views of individual Jus-
tices.”). Plus, because Congress represents the American people,
“its pronouncements regarding the appropriate range of fines for a
crime represent the collective opinion of the American people as
to what is and is not excessive.” 817 N.E. 29th Drive, 175 F.3d at
1309. To the extent that “excessiveness is a highly subjective judg-
ment,” id., you can see why courts have largely left that judgment
to the people’s representatives.
Here’s the thing: I’m not sure that excessiveness is neces-
sarily a “highly subjective judgment.” Because we seem to have
reached that conclusion based on the Supreme Court’s decision in
United States v. Bajakajian, 524 U.S. 321 (1998), I’ll turn to it now.
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6 NEWSOM, J., Concurring 20-10276
B
Before Bajakajian, the Excessive Fines Clause had long re-
mained largely unexplored and unexplained. That is, for about two
centuries, the Supreme Court had little occasion to apply the
Clause. See Bajakajian, 524 U.S. at 327. So it fell to the Bajakajian
Court to flesh out a standard for determining the excessiveness of
fines.
The Court began its work by examining the text and history
of the Excessive Fines Clause. Id. at 335. Digging into those
sources, the Bajakajian Court concluded that both showed “the
centrality of proportionality to the excessiveness inquiry.” Id. In
reaching that conclusion, the Court traced the Clause’s lineage to
the Magna Carta, which required that economic punishments “be
proportioned to the offense.” Id. Crucially for my purposes—for
reasons I’ll get into—the Court also noted that the Magna Carta
mandated that punishments “not deprive a wrongdoer of his live-
lihood.” Id. Yet the Court passed over that second consideration,
seemingly because Bajakajian hadn’t argued “that his wealth or in-
come are relevant to the proportionality determination or that full
forfeiture would deprive him of his livelihood, and the District
Court made no factual findings in this respect.” Id. at 340 n.15 (ci-
tation omitted).
As to the question of proportionality, the Court observed
that the “text and history of the Excessive Fines Clause . . . provide
little guidance as to how disproportional a [fine] must be to the
gravity of an offense in order to be ‘excessive.’” Id. at 335. So,
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20-10276 NEWSOM, J., Concurring 7
having bracketed what I’ll call the deprivation-of-livelihood issue,
the Court looked to its Cruel and Unusual Punishments Clause
caselaw for help with proportionality. There, it found the principle
that “judgments about the appropriate punishment for an offense
belong in the first instance to the legislature.” Id. at 336. Extending
that principle to the context of economic penalties, the Court
adopted the same “gross disproportionality” standard for fines that
it had used for other punishments. See id. Thus, if a fine “is grossly
disproportional to the gravity of the defendant’s offense, it is un-
constitutional.” Id. at 337.
Significantly for our jurisprudence in this area, our Court has
taken Bajakajian to mean that “excessiveness is determined in rela-
tion to the characteristics of the offense, not in relation to the char-
acteristics of the offender.” 817 N.E. 29th Drive, 175 F.3d at 1311(emphasis added) (citing Bajakajian, 524 U.S. at 334). It’s from that
premise—and perhaps because the Supreme Court had told us that
text and history of the Excessive Fines Clause have little to say on
the question of proportionality—that we concluded “that exces-
siveness is a highly subjective judgment.” Id. at 1309. And, again,
presumably because such judgments are best left with those who
represent the people, we then adopted a “strong presumption” of
constitutionality for fines falling within the ranges set by Congress.
Id.
If, as it seems, an assumption underlying our decision in 817
N.E. 29th Drive was that Bajakajian positively foreclosed the pos-
sibility of considering an offender’s characteristics in evaluating the
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8 NEWSOM, J., Concurring 20-10276
excessiveness of a fine, we may have gotten that much wrong. To
be sure, the Bajakajian Court did say that “the test for the exces-
siveness of a punitive forfeiture involves solely a proportionality
determination,” 524 U.S. at 333–34 (emphasis added), and it framed
that inquiry in terms of “how disproportional to the gravity of an
offense a fine must be,” id. at 336. Yet in Timbs v. Indiana, the
Supreme Court characterized Bajakajian as having “tak[en] no po-
sition on the question whether a person’s income and wealth are
relevant considerations in judging the excessiveness of a fine.” 139
S. Ct. at 688 (majority op.). And even before Timbs, other circuits
had disagreed with our elision of the deprivation-of-livelihood is-
sue from the excessiveness inquiry. See, e.g., United States v.
Levesque, 546 F.3d 78, 83 & n.4 (1st Cir. 2008) (holding that courts
should consider whether a fine “would deprive the defendant of his
or her livelihood”); United States v. Lippert, 148 F.3d 974, 978 (8th
Cir. 1998) (holding that a “defendant’s ability to pay is a factor un-
der the Excessive Fines Clause”); United States v. Viloski, 814 F.3d
104, 111 (2d Cir. 2016) (similar). 3 It may be, then, that our exces-
sive-fines jurisprudence rests in part on a misreading of Bajakajian.
3 How exactly the deprivation-of-livelihood issue should be analyzed is the
subject of some disagreement. For instance, the First Circuit considers the
deprivation-of-livelihood issue to be independent of the question of gross dis-
proportionality, see Levesque, 546 F.3d at 84–85, whereas the Second Circuit
considers the former as part of its test for the latter, see Viloski, 814 F.3d at
111–12 & n.12. The Second Circuit’s approach seems easier to reconcile with
Bajakajian’s statement that the test for excessiveness “involves solely a propor-
tionality determination,” 524 U.S. at 334 (emphasis added), but the First
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20-10276 NEWSOM, J., Concurring 9
More importantly to me, blinding ourselves to the effect of
a fine on a defendant’s livelihood may well contravene the original
meaning of the Eighth Amendment’s Excessive Fines Clause. So
let’s get into that.
C
The Eighth Amendment states that “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII. Not exactly self-
explanatory. Looking solely at the text of the Excessive Fines
Clause, one is left to wonder, excessive in relation to what? 4 The
answer, history suggests, is not just a what—the offense—but also
a whom—the offender.
Return to the Eighth Amendment’s lineage. It descends
most directly from the Virginia Declaration of Rights, see Solem v.
Helm, 463 U.S. 277, 286 n.10 (1983), which provided that “excessive
bail ought not to be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted,” Va. Declaration of
Circuit’s approach may more accurately reflect the historical sources, which
appear to treat the proportionality and deprivation-of-livelihood issues sepa-
rately, see id. at 335 (explaining that the Magna Carta required that economic
sanctions “be proportioned to the offense and that they should not deprive a
wrongdoer of his livelihood” (emphasis added)).
4 The Framers’ debate on the Eighth Amendment, though quite brief, suggests
that at least one participant—Samuel Livermore—had basically that question
and seemed worried about who would answer it: “What is understood by ex-
cessive fines? It lies with the court to determine.” 1 Annals of Congress 782
(1789) (Joseph Gales ed., 1834).
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10 NEWSOM, J., Concurring 20-10276
Rights § 9 (1776). That language, in turn, came from the English
Bill of Rights of 1689. See Timbs, 139 S. Ct. at 688. And that doc-
ument’s prohibition on excessive fines drew on and reaffirmed the
Magna Carta’s guarantees. Id.Among those guarantees was a prohibition on economic
sanctions that would deprive an offender of his livelihood. Where
the Magna Carta addressed amercements—a forerunner of fines—
it required, among other things, “that the amount of the amerce-
ment be proportioned to the wrong” and “not be so large as to de-
prive [an offender] of his livelihood.” Browning-Ferris Indus. of
Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 271 (1989). Trans-
lated from the Latin, the most pertinent provision of the Magna
Carta said the following:
A free man shall be amerced for a small fault only ac-
cording to the measure thereof, and for a great crime
according to its magnitude, saving his position; and in
like manner, a merchant saving his trade, and a villein
saving his tillage, if they should fall under Our mercy.
Timbs, 139 S. Ct. at 693 (Thomas, J., concurring in the judgment)
(quoting Magna Carta, Ch. 20 (1215), in A. Howard, Magna Carta:
Text & Commentary 42 (rev. ed. 1998)).
To save a free man’s “position,” a merchant’s “trade,” and a
villein’s “tillage”—all reflect the principle that no offender be
“pushed absolutely to the wall: his means of livelihood must be
saved to him.” William Sharp McKechnie, Magna Carta: A
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20-10276 NEWSOM, J., Concurring 11
Commentary on the Great Charter of King John 287 (2d ed. 1914). 5
The Magna Carta also provided a means to that end. No amerce-
ments could be imposed “except by the oath of honest men of the
neighbourhood.” Magna Carta, Ch. 20 (1215), in McKechnie, su-
pra, at 284. In practice, then, after a judge ensured that sanctions
were “proportionate to the gravity of the offense,” 12 members of
the offender’s community could reduce the sanctions “in accord-
ance with their knowledge of the wrong-doer’s ability to pay.”
McKechnie, supra, at 288; see also 4 William Blackstone’s Com-
mentaries *379 (explaining that “the great charter also directs that
the amercement . . . shall be set . . . or reduced to a certainty, by
oath of good and lawful men of the neighbourhood”). In both sub-
stance and procedure, then, the Magna Carta protected an of-
fender’s livelihood. No wonder one eminent legal historian
thought it “[v]ery likely there was no clause in Magna Carta more
grateful to the mass of the people than that about amercements.”
F.W. Maitland, Pleas of the Crown for the County of Gloucester
xxxiv (1884).
5 The words taken as “position,” “trade,” and “tillage” in the version of the
Magna Carta that I’ve quoted have elsewhere been rendered “contenement,”
“merchandize,” and “waynage,” respectively, and, as that variation suggests,
scholars debate the exact contours of those terms. See generally Nicholas M.
McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive
Fines Clause, 40 Hastings Const. L.Q. 833, 854–56 (2013). But all seem to agree
that the Magna Carta forbid an amercement “so large as to deprive [an of-
fender] of his livelihood.” Browning-Ferris Indus., 492 U.S. at 271.
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12 NEWSOM, J., Concurring 20-10276
Blackstone confirms that the deprivation-of-livelihood com-
ponent of the excessiveness inquiry endured across the centuries.
In his discussion of the prohibition of excessive fines, he observed
that the 1689 “bill of rights was only declaratory of the old consti-
tutional law”—including, of course, the Magna Carta. Blackstone,
supra, at *377. So, on Blackstone’s account, the 1689 Bill of Rights’
excessive fines clause carried forward the Magna Carta’s provision
concerning amercements. Id. at *377. Hence, the rule was that
“no man shall have a larger amercement imposed upon him than
his circumstances or personal estate will bear.” Id. at *379. Because
Blackstone’s “works constituted the preeminent authority on Eng-
lish law for the founding generation,” Alden v. Maine, 527 U.S. 706,
715 (1999), his treatment of the English Bill of Rights of 1689—and
its renewal of the Magna Carta’s protections of an offender’s liveli-
hood—supports an analogous reading of our Eighth Amendment’s
Excessive Fines Clause.
What’s more, Blackstone’s understanding accords with
sources from colonial America and the early Republic. See Nicho-
las M. McLean, Livelihood, Ability to Pay, and the Original Mean-
ing of the Excessive Fines Clause, 40 Hastings Const. L.Q. 833, 866–
68 (2013) (collecting sources); see also Beth A. Colgan, Reviving the
Excessive Fines Clause, 102 Cal. L. Rev. 277, 330 (2014) (“The prin-
ciple espoused by the Magna Carta and Blackstone that fines should
not permanently impoverish defendants is also found in colonial
and early American records.”). When William Penn set the metes
and bounds of colonial Pennsylvania’s government, for instance,
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20-10276 NEWSOM, J., Concurring 13
he echoed the language of the Magna Carta: “[A]ll fines shall be
moderate, and saving men’s contenements, merchandise, or
wainage.” Pa. Frame of Government § XVIII (1682). Subsequent
legislation in the same colony provided for moderate fines as well,
“saving men’s contenements, merchandise and wainage, which is
to say, their furniture of their calling and means of livelihood.”
McLean, supra, at 866 n.128. A proto-constitutional document
from New York likewise echoed the Magna Carta’s protections
against excessive fines. See N.Y. Charter of Privileges and Liberties
(1683). A century later, legislation in New York did the same. See
Colgan, supra, at 330 (citing a 1787 law requiring that any fine be
proportioned to an offense and save to the offender “his or her con-
tenement; That is to say every freeholder saving his freehold, a
merchant saving his merchandize and a mechanick saving the im-
plements of his trade”). Given the importance of Virginia’s Decla-
ration of Rights to the Eighth Amendment, it’s perhaps especially
telling that a decision from that state’s apex court explained that
the Declaration and ensuing legislation provided that a “fine should
be according to the degree of the fault and the estate of the of-
fender.” Jones v. Commonwealth, 5 Va. (1 Call.) 555, 557 (1799)
(Roane, J.) (emphasis added).
There’s good reason to think, then, that when the founding
generation ratified a prohibition against “excessive fines,” the
phrase carried with it an understanding that a fine’s excessiveness
(or lack thereof) depended on both the relationship between the
fine and the offense and that between the fine and the offender. If
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14 NEWSOM, J., Concurring 20-10276
so, the excessiveness inquiry as it stands—in this Circuit, at least—
is incomplete.
* * *
I’ve written separately to question the degree of deference
we give Congress’s judgments on the constitutionality of fines it
sets. It’s not obvious to me that Supreme Court precedent com-
pels, or the Constitution allows, courts to ignore the impact of a
fine on an offender’s livelihood. And, to the extent that the Exces-
sive Fines Clause requires us to consider precisely that, as I think it
well may, returning to the Clause’s original meaning would pro-
vide a more objective basis for our own judgments—and thereby
alleviate any need for undue deference to Congress’s. 6
Perhaps another court in another case will answer those
questions. As we—by which I mean the three of us—are not that
court and this is not that case, I concur in today’s fine opinion.
6 Judge Tjoflat seems to agree with my basic premise. He cites many of the
same English, colonial, and Framing-era sources that I do in support of the
proposition that an excessive-fines inquiry should account for “both the char-
acteristics of the offender and offense.” Tjoflat Concurring and Dissenting Op.
at 23. So far, so good. I can’t agree, however, with his further “suggest[ion]”
that district courts apply the 18 U.S.C. § 3553(a) sentencing factors as “the test
for excessiveness of civil fines under the Eighth Amendment.” Id. at 25 (em-
phasis added). Whatever commonsense appeal Judge Tjoflat’s proposal may
have as a policy matter, it lacks (so far as I can tell) any firm footing in the text
or history of the Excessive Fines Clause.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 1
TJOFLAT, Circuit Judge, concurring in part and dissenting in part:
I agree that the Excessive Fines Clause is applicable to False
Claims Act (“FCA”) statutory penalties, but I disagree with the
Court’s new test for the Excessive Fines Clause as it applies to civil
fines. 1 So, I endeavor to lay out, first, why the statute fails to pro-
vide a set of standards by which to impose statutory penalties, mak-
ing an Excessive Fines Clause analysis the only means by which to
evaluate the penalty amount. And, second, I will lay out an alter-
native analysis to the Court’s for the Excessive Fines Clause as it
applies to civil fines.
I.
I start from the premise that a district court order without
reasoning is arbitrary and therefore unreviewable by us because we
have no standards by which to evaluate it. See Danley v. Allen, 480
F.3d 1090, 1091 (11th Cir. 2007) (“Many times, and in many con-
texts, this Court has admonished district courts that their orders
should contain sufficient explanations of their rulings so as to pro-
vide this Court with an opportunity to engage in meaningful appel-
late review.”); see also Gall v. United States, 552 U.S. 38, 51, 128 S.
Ct. 586, 597 (2007) (explaining that a criminal sentence is
1 I would not reach whether my proposed Excessive Fines Clause test for civil
fines also applies to criminal fines. Unlike civil fines, criminal fines are already
governed by the Sentencing Guidelines and the factors laid out in 18 U.S.C.
§§ 3553(a) and 3572. So, a different test may be required in the criminal fines
context.
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2 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
procedurally unreasonable when the district court “fail[s] to ade-
quately explain the chosen sentence”).
The extent of the District Court’s reasoning in this case is
that it was bound by our decision in United States v. Killough, 848
F.2d 1523, 1533–34 (11th Cir. 1988), which held that the statutory
violation penalties under the FCA were mandatory and must be
stacked for each violation of the statute. But Killough said nothing
about how district courts should impose fines within the statutory
range set by Congress. Beyond requiring the district court to im-
pose at least the statutory minimum amount for every false claim,
Killough gives no guidance as to what fine is appropriate. At the
time of this case, every claim against Pinellas required, in addition
to treble damages, a statutory penalty of between $5,500 and
$11,000 per violation.2 Pinellas cost the Government $755.54 in
actual damages, and it submitted 214 false claims. So, the District
Court imposed $2,266.62 in treble damages plus $1,177,000 in stat-
utory penalties. The District Court imposed the minimum statu-
tory penalty of $5,500 for each of the 214 false claims. But it pro-
vided no legal justification as to why it chose $5,500 within the stat-
utory range of $5,500 to $11,000 per false claim penalty. Presuma-
bly, the District Court imposed the statutory minimum fine per vi-
olation because it thought that even the statutory minimum fine
2 This number has skyrocketed. As of June 2020, FCA penalties range
from $11,665 to $23,331 per violation. See 28 C.F.R. § 85.5.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 3
was “quite harsh”; but it grounded this determination in no set of
standards.
The District Court’s damages order reveals an internal prob-
lem within the FCA—the FCA provides no guidance as to what
considerations district courts should take into account when im-
posing a fine within the statutory range. To understand how dis-
trict courts should evaluate FCA fines, we must first turn to the
factors district courts must consider in evaluating fines in the crim-
inal context.
II.
In the criminal law, district courts impose fines based on a
set of statutory standards, located in 18 U.S.C. §§ 3553(a) and 3572. 3
These standards are Congress’s codification of the traditional pur-
poses of sentencing: general deterrence, specific deterrence or in-
capacitation, and retribution. United States v. Scroggins, 880 F.2d
1204, 1206 (11th Cir. 1989) (explaining the development of the
common-law purposes of punishment from the time of the Amer-
ican Revolution to the 1800s). Because the traditional purposes of
sentencing guide a district court’s discretion in imposing criminal
penalties, we, as a reviewing court, have standards by which to
3 Section 3572 is an explication of the § 3553(a) factors as they apply to criminal
fines. See § 3553(a) (explaining that the court must look at the specific charac-
teristics of the offense and offender in determining the appropriate sentence).
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4 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
evaluate a district court’s imposition of a sentence of confinement
under § 3553(a) or a criminal fine under § 3572. 4
With that background, I turn to the FCA’s statutory scheme.
It is a civil penalty system that is “essentially punitive.” Vt. Agency
of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 784, 120
S. Ct. 1858, 1869 (2000). Aside from the problems of using a civil
lawsuit to effectuate criminal punishment, I have another con-
cern—that essentially criminal penalties are being levied without
the protection criminal defendants have when they are being sen-
tenced. What I mean by this is that the FCA does not direct district
courts to consider the traditional purposes of punishment as codi-
fied in § 3553(a) and § 3572 when imposing FCA penalties within
the statutory fine range per violation, nor does it offer an alterna-
tive set of standards.
So, without a set of standards, the district court has unfet-
tered discretion to impose any fine within the statutory range. And
that makes imposition of such fines essentially unreviewable for us,
4 In the fines context, the § 3572 factors represent a mix of both general and
specific deterrence. Specific deterrence, also known as incapacitation in the
incarceration context, merges with general deterrence in the fines context be-
cause what will deter the public at large will necessarily deter the individual
who has to pay the fine. But the individual is not literally incapacitated when
he pays a fine, like he would be if he were incarcerated.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 5
except under the Eighth Amendment. 5 Of course, if a penalty is
outside the statutory range, less than the minimum or more than
the maximum, we can review that deviation without any govern-
ing standards inside the FCA. But that leads to very limited review
and defeats the purpose of making a fine within the statutory range
reviewable.
The FCA’s standardless penalty scheme is like a return to
pre-1984 sentencing. Prior to the sentencing reforms codified in
the Sentencing Reform Act of 1984, we, as the reviewing court,
could only disturb a district court’s sentence if it was illegal, mean-
ing that it was outside the statutory range, or if it was in violation
of the Eighth Amendment. See United States v. Irey, 612 F.3d 1160,
1180 (11th Cir. 2010) (en banc) (“Before the Sentencing Reform Act
was enacted in 1984, there was practically no appellate review of
federal sentences, . . . [and] [s]o long as sentencing judges stayed
within the statutory boundaries, they had unbridled discretion to
arrive at any sentence they pleased.”). But Congress discarded that
approach when it adopted the Sentencing Reform Act. That Act
“channeled and cabined the discretion of sentencing judges by es-
tablishing the sentencing guidelines (effective in November 1987)
and by specifying factors that had to be considered when imposing
a sentence.” United States v. Fowler, 749 F.3d 1010, 1020–21 (11th
Cir. 2014). Now, even after United States v. Booker, 543 U.S. 220,
5Separately, if a defendant were not allowed by statute to appeal his fine, he
would have to collaterally attack the fine under the Eighth Amendment to
obtain review.
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6 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
125 S. Ct. 738 (2005), district courts must use the guidelines range
as an “initial benchmark for their sentencing decisions” and then
“must consider the factors set forth in § 3553(a) to determine
whether to impose a sentence within or without the guidelines
range.” Fowler, 749 F.3d at 1021 (internal citation and quotation
marks omitted). This is so because “the guidelines remain the lode-
stone of sentencing.” Id. (internal citation and quotation marks
omitted).
And now, “post-guidelines sentences are subject to mean-
ingful appellate review for reasonableness.” Id. (noting that “if a
court elects to impose a sentence based on a major variance from
the guidelines range, the chances of reversal on appeal increase”).
So, the criminal sentencing context allows for appellate review be-
cause the district court must apply standards leading to a result that
we can review. The chances of such a sentence violating the Eighth
Amendment are very low because the sentence should have al-
ready accounted for a guidelines computation, derived from em-
pirical studies directed to the need of general deterrence and retri-
bution, and the § 3553(a) factors.
But the imposition of civil fines under the FCA is stuck in
pre-1984 sentencing, where, based on the statute, we can only hold
that a fine is illegal if it departs from the statutory range. This is
certainly at odds with our jurisprudence on review of terms of in-
carceration and criminal fines, even after Booker, and appellate re-
view more generally, which requires standards for evaluation of
district court action. And, without any internal standards for
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 7
review on the amount of the statutory penalty, we must review the
present fine under the Eighth Amendment’s Excessive Fines
Clause. 6
III.
In reaching the Excessive Fines Clause analysis, I feel com-
pelled to first explain why the Court has erred in applying United
States v. Bajakajian. Forfeitures in the context of criminal proceed-
ings, as in Bajakajian, are vastly different from civil fines, as in the
FCA, and to apply the same test to both would be to start our Ex-
cessive Fines Clause jurisprudence as it applies to civil fines on the
wrong foot from the beginning.
In Bajakajian, the defendant pled guilty for his failure to re-
port $357,144 that he was planning to take overseas, and the appli-
cable forfeiture statute for the crime of failing to report traveling
6 Judge Jordan misunderstands the purpose of the preceding discussion when
he says that “Pinellas has not based its Eighth Amendment Challenge on the
procedural claim that the FCA lacks standards.” Maj. Op. at 52 n.2. I am not
suggesting that Pinellas’s Eighth Amendment challenge is based on the lack of
standards in the FCA for review of statutory penalties. Notwithstanding the
arguments of the parties in this case, I am only pointing out that, unlike in the
criminal context, the only method by which we may evaluate statutory pen-
alties in the FCA is the Constitution itself. That seems like an odd arrange-
ment to me, one I felt was worth noting, before diving into the Eighth Amend-
ment analysis. Judge Jordan’s second point in footnote 9, see id., is exactly my
own. As I explain later, see infra Section IV n.19, as a constitutional matter,
even the statutory minimum may be too high, and nothing in our precedent
suggests that a district court may not dip below that statutory minimum if a
constitutional violation is present.
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8 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
out of the country with more than $10,000 required that he forfeit
the entire amount he was traveling with—all $357,144. 524 U.S.
321, 337–39, 118 S. Ct. 2028, 2038–39 (1998). In that case, the Su-
preme Court held that such a forfeiture would be grossly dispro-
portionate to the simple crime of failing to report, especially since
the crime was not related to other illegal activities. Id.In my view, central to Bajakajian’s analysis was the com-
mon-law roots of forfeiture. At the time of the framing of the
Eighth Amendment, three kinds of forfeiture existed in England: 1)
deodand, 2) forfeiture upon conviction for a felony or treason, and
3) statutory forfeiture. Austin v. United States, 509 U.S. 602, 611–
12, 113 S. Ct. 2801, 2806–07 (1993). Each of these forms of forfei-
ture could be used to punish, and in American law, the third cate-
gory, statutory forfeiture, took the greatest hold. Id. In Bajakajian,
the forfeiture was “imposed at the culmination of a criminal pro-
ceeding and require[d] conviction of an underlying felony.” Ba-
jakajian, 524 U.S. at 328, 118 S. Ct. at 2033. The Court determined
that the forfeiture was in personam, that is, as a result of an indi-
vidual’s criminal conduct, rather than in rem, that is, against guilty
property. Id. at 331–332, 118 S. Ct. at 2035. This choice was signif-
icant because the Court correlated in personam forfeiture with
punishment, making that particular forfeiture subject to the Exces-
sive Fines Clause.7 Id.7The Court did note, however, that the inquiry is whether the forfeiture is
punitive, not whether the forfeiture is in personam or in rem, for the purposes
of the Excessive Fines Clause analysis. See Bajakajian, 524 U.S. at 332 n.6, 118
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 9
What is key in all the Court’s discussion of forfeiture for pur-
poses of our analysis is the fact that the property at issue in any
form of forfeiture is related to the criminal offense. If the forfeiture
is in personam, the property is related to the individual’s criminal
conduct. If the forfeiture is in rem and relates to a criminal matter,
the property has been used in a criminal manner, even if the owner
of the property is innocent. Either way, the forfeiture is directed at
property directly tied to criminal conduct, and the property for-
feited is directly correlated to the property that was involved in the
criminal offense. See Austin, 509 U.S. at 627–28, 113 S. Ct. at 2815
(Scalia, J., concurring) (“But an in rem forfeiture goes beyond the
traditional limits that the Eighth Amendment permits if it applies
to property that cannot properly be regarded as an instrumentality
of the offense—the building, for example, in which an isolated drug
sale happens to occur. Such a confiscation would be an excessive
fine. The question is not how much the confiscated property is
worth, but whether the confiscated property has a close enough
S. Ct. at 2036 n.6 (“It does not follow, of course, that all modern civil in rem
forfeitures are nonpunitive and thus beyond the coverage of the Excessive
Fines Clause. Because some recent federal forfeiture laws have blurred the
traditional distinction between civil in rem and criminal in personam forfei-
ture, we have held that a modern statutory forfeiture is a ‘fine’ for Eighth
Amendment purposes if it constitutes punishment even in part, regardless of
whether the proceeding is styled in rem or in personam. See Austin v. United
States, supra, at 621–622, 113 S.Ct., at 2811–2812 (although labeled in rem, civil
forfeiture of real property used “to facilitate” the commission of drug crimes
was punitive in part and thus subject to review under the Excessive Fines
Clause).”).
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10 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
relationship to the offense.” (emphasis in original)). And, in the
case of in personam forfeiture, as in Bajakajian, the forfeiture was
related to a criminal sentence that could include imprisonment and
a fine under the applicable statute. Bajakajian, 524 U.S. at 338, 118
S. Ct. at 2038.
From Bajakajian, we derived a three-factor test to determine
whether a forfeiture is grossly disproportional to the gravity of a
defendant’s offense. See United States v. Browne, 505 F.3d 1229,
1281 (11th Cir. 2007). We explained that in these cases we examine
“(1) whether the defendant falls into the class of persons at whom
the criminal statute was principally directed; (2) other penalties au-
thorized by the legislature (or the Sentencing Commission); and (3)
the harm caused by the defendant.” Browne, 505 F.3d at 1281 (in-
ternal citation omitted). We later clarified, in United States v.
Chaplin’s, Inc., that these factors do not represent an “exclusive
checklist,” 646 F.3d 846, 851 n.16 (11th Cir. 2011), and that we apply
a “strong presumption” of constitutionality when the forfeiture is
below the maximum criminal statutory fine, id. at 852 (citing
United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309 (11th Cir.
1999).
Bajakajian was tailored to the context of forfeiture. Forfei-
ture’s deep common-law roots make it distinct from the FCA’s civil
fines regime, and I think this difference makes the test we devel-
oped in Browne (from Bajakajian) inapplicable to the present case.
Cf. Austin, 509 U.S. at 627, 113 S. Ct. at 2814 (Scalia, J., concurring)
(“[I] think it worth pointing out that on remand the excessiveness
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 11
analysis [for in rem forfeitures] must be different from that applica-
ble to monetary fines and, perhaps, to in personam forfeitures.”).
Here, in the FCA context, there is no natural limit to the fine ex-
tracted, like there is a natural limit to the property forfeited based
on its involvement in criminal activity. And, because the criminal
fine at issue in Bajakajian was in personam, that is, based on the
defendant’s criminal conviction, the Court could compare the for-
feiture amount to how culpable Congress thought the conduct was
under the criminal scheme. In addition, the Guidelines inherently
consider specific deterrence, general deterrence, and retribution.
See Scroggins, 880 F.2d at 1209 (“Thus, while the guidelines con-
sider evidence of the offender’s criminal history for purposes of
punishment and general deterrence, its primary importance is to
ensure that the specific defendant is deterred from future criminal
conduct.”).
I take issue with the Court’s treatment of both the second
Browne factor, derived from Bajakajian, and the strong presump-
tion of constitutionality because neither has a place in the FCA con-
text. The second Browne factor directs the court to analyze “other
penalties authorized by the legislature (or the Sentencing Commis-
sion).” Browne, 505 F.3d at 1281. Undoubtedly, the Court today
evaluates other penalties authorized by the legislature, but it eval-
uates the wrong penalties. The Court goes outside the FCA statu-
tory scheme to compare the FCA fines to the fines of such statutes
as civil RICO, the Clayton Act, federal aviation laws, and the Anti-
Kickback Act. See Maj. Op. at 49–51. But that analysis
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12 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
misinterprets the second Browne factor. As Bajakajian’s analysis
makes clear, a court must look within the statutory scheme in eval-
uating what other penalties are authorized for the same offense.
Bajakajian, 524 U.S. at 338, 118 S. Ct. at 2038 (focusing on the Sen-
tencing Guidelines (pre-Booker) and explaining that while the ap-
plicable forfeiture statute required forfeiture of the entire $357,144
the maximum period of incarceration that could have been im-
posed under the guidelines for the crime of failing to report the
currency was six months with a maximum fine of $5,000). The
purpose of looking within the statutory scheme is to figure out
how culpable Congress considered the conduct at issue to be. Id.
at 339, 118 S. Ct. at 2038 (explaining that in Bajakajian’s case, “such
penalties confirm a minimal level of culpability”).
The Court’s method of comparing FCA penalties to other
statutory schemes is like comparing apples and oranges. And fig-
uring out how culpable Congress thinks an orange is tells us noth-
ing about how culpable it thinks an apple is. In fact, the Court’s
method reveals how little room district courts have to maneuver
in imposing fines under the FCA. The district court must impose
treble damages and statutory penalties, with no discretion to craft
a tailor-made sentence. This is not like the flexibility in criminal
sentencing afforded to district courts, which often have statutory
fines, statutory sentencing ranges, and guidelines ranges as guides
when imposing punishment. This difference between the criminal
context and FCA fines leads me to believe that the second Browne
factor is totally inapplicable to the FCA context. Today’s decision
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 13
is precedential because we are deciding to apply the Excessive Fines
Clause to FCA fines. On this blank slate, I would hesitate to apply
a wooden analysis of the second Browne factor without accounting
for the differences between forfeitures associated with criminal
convictions and civil fines.
Next, I turn to the Court’s application of the strong pre-
sumption of constitutionality. Chaplin’s tells us that when a forfei-
ture is below the statutory maximum criminal fine, we give that
forfeiture a strong presumption of constitutionality. 646 F.3d at
842. Congress determines how culpable the conduct is, and a com-
parison of the forfeiture amount to the fine amount allowed by
statute is one way of measuring culpability. This is because the
criminal fine amount is the product of Congress weighing the tra-
ditional purposes of punishment in crafting sentences. “Congress,
as a representative body, can distill the monetary value society
places on harmful conduct,” and “[t]he Sentencing Guidelines re-
flect institutional expertise and monetize culpability with even
greater precision than criminal legislation.” Chaplin’s, Inc., 646
F.3d at 852 (internal citation and quotation marks omitted). But
the strong presumption of constitutionality should only apply
when Congress and/or the Sentencing Commission bring their ex-
pertise to bear. And, here, there is no indication of how culpable
either body thought the false claims were by any other measure
than the fine itself, unlike in the forfeiture context, where the
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14 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
criminal fine guides the forfeiture analysis.8 For sure, the legislative
reports surrounding the 1986 amendments to the FCA suggest that
the fines were aimed at deterrence. H.R. Rep. No. 99-660, at 20
(1986) (“The Committee recommends this change in order that the
False Claims Act penalties will have a strong deterrent effect.”).
But evaluation of deterrence should be tied to evidence of what
will, in fact, most efficiently deter. See § 3553(a) (“The court shall
impose a sentence sufficient, but not greater than necessary, to
comply with the” traditional purposes of punishment.”). That is,
Congress should want to make the costs of doing the prohibited
activity higher than not doing it. But just how much higher the
costs should be is a matter of legislative determination. The cir-
cumstances of the case will have a bearing on efficient deterrence.
If a child steals a candy bar, a $100 fine and a $1,000 fine will both
deter the child, but the $1,000 fine would probably be dispropor-
tionate to the offense. So, the $100 fine is probably more appropri-
ate.
8 The strong presumption of constitutionality is premised on “two very com-
petent bodies,” Congress and the Sentencing Commission, “[t]ranslating the
gravity of a crime into monetary terms.” 817 N.E. 29th Drive, 175 F.3d at
1309. Specifically, the guidelines “are the product of extensive research,
though, input from commentators, and experience,” and “[t]hey are designed
to proportion punishments to crimes with even greater precision than crimi-
nal legislation.” Id. at 1310; see also 28 U.S.C. § 994 (explaining the many con-
siderations, including the § 3553(a) factors, the Commission must take into
account when determining guidelines ranges). None of these protections ap-
ply in the FCA context, and the need for us to evaluate Congress’s work be-
comes greater in the absence of such protections.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 15
The FCA covers a vast swath of conduct, from solo practice
medical clinics sending in false Medicare claims to government
contractors defrauding the Government of millions of dollars. See
S. Rep. No. 110-507, at 3–4 (2008) (discussing the impetus behind
the 1986 Amendments to the False Claims Act and “widespread”
fraud against the Government (internal citation omitted)). Of
course, the commonality is that all False Claims Act cases in-
volve—well—false claims. But the sheer permutations of false
claims violations falling under the FCA precluded Congress from
“distill[ing] the monetary value society places on harmful con-
duct” 9 or “monetize[ing] culpability” under the statutory fine
scheme.10 Chaplin’s, Inc., 646 F.3d at 852. A solo doctor could sub-
mit 50 false claims in Medicare fraud that only cost the Govern-
ment $500. A Government contractor could submit 50 false claims
that cost the Government $5 million. In both cases, the statutory
minimum and maximum fine range would be the same, even
though the treble damages amounts would be vastly different and
the cost to society would likely be much higher in the case of Gov-
ernment contractor fraud. My point is that the statutory fine
ranges are not at all tethered to what will efficiently deter a
9 While monetary recoveries “represent a victory for American taxpayers, they
are only one measure of the fraud against the Government. As the GAO
pointed out, fraud erodes public confidence in the Government’s ability to ef-
ficiently and effectively manage its programs.” S. Rep. No. 110-507, at 8.
10 “Complexity of subject matter should never preclude the Government from
uncovering fraud, but, unfortunately, it is impossible to determine how much
fraud goes undetected.” S. Rep. No. 110-507, at 8.
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16 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
particular defendant based on evidence, so the strong presumption
of constitutionality is unwarranted in the FCA fine context.
IV.
Having explained why the Bajakajian analysis is inapplicable
to the civil fines context, I now turn to what I deem to be a more
sensible approach to evaluating civil fines under the Eighth
Amendment.
Our Eighth Amendment has a distinguished lineage. In
1215, Magna Carta directed that “[a] Free-man shall not be amerced
for a small fault, but after the manner of the fault; and for a great
fault after the greatness thereof, saving to him his contenement.”11
11 “Lord Coke believed that the Magna Charta’s protections against excessive
amercements were ‘made in the affirmance of the common law.’” Calvin
Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons
from History, 40 Vand. L. Rev. 1233, 1251 (1987) (citing 2 E. Coke, The Insti-
tutes of the Laws of England *27–28). Prior to Magna Carta, legal writers were
espousing the principle of proportionality. See id. at 1251 (quoting Glanvill
who wrote in the late twelfth century). It is worth noting that Magna Carta
only applied to amercements and not fines, but the later 1689 English Bill of
Rights applied to both amercements and fines. See id. at 1252–53. But, since
an amercement “was a financial penalty payable to the crown or its representa-
tive,” for either a civil or criminal misdeed, id. at 1252, it serves as a common-
law analog to the modern FCA fine. In contrast, fines at common law were
“voluntary offering[s] made to the king to avoid royal displeasure or obtain
some favor.” By the eighteenth century, the distinction between these two
schemes vanished. Id. at 1264. For our purposes, common-law amercements
serve an important role in deciphering the original meaning of the Excessive
Fines Clause because they most closely mirror the civil fines of the FCA.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 17
§ 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). The baseline
for amercements and fines under Magna Carta was proportionality
to the wrong committed and to the defendant’s ability to pay. See
Timbs v. Indiana, 139 S. Ct. 682, 688 (2019) (citing Browning-Ferris
Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 271, 109 S. Ct. 2909,
2918 (1989)). Because abuses abounded under the Stuart kings in
the seventeenth century, the English Bill of Rights of 1689 picked
up on Magna Carta’s language and directed that “excessive Bail
ought not to be required, nor excessive Fines imposed; nor cruel
and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, § 10, in
3 Eng. Stat. at Large 441 (1689). Ultimately, that language was in-
corporated into the Virginia Declaration of Rights 12 and then into
our Eighth Amendment. See Timbs, 139 S. Ct. at 688–89; see also
Calvin Massey, The Excessive Fines Clause and Punitive Damages:
Some Lessons from History, 40 Vand. L. Rev. 1233, 1241 (1987)
(noting that there was little debate over the Eighth Amendment
and explaining that it is likely that the First Congress “uncritically
accepted the language [of the Excessive Fines Clause], treating it as
12See Allan Nevins, The American States During and After the Revolution,
1775-1789 146 (1924) (explaining that the Virginia Declaration of Rights “was
a restatement of English principles—the principles of Magna Charta . . . and
the Revolution of 1688”); see also Solem v. Helm, 463 U.S. 277, 286, 103 S. Ct.
3001, 3007 (1983) (“Although the Framers may have intended the Eighth
Amendment to go beyond the scope of its English counterpart, their use of
the language of the English Bill of Rights is convincing proof that they in-
tended to provide at least the same protection—including the right to be free
from excessive punishments.”).
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18 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
a shorthand expression for ancient rights rooted in the soil of Eng-
lish law”).
The prohibition of excessive fines “has been a constant
shield throughout Anglo-American history.” Timbs, 139 S. Ct. at
689. One example of the need for the Excessive Fines Clause is that
“[e]ven absent a political motive, fines may be employed ‘in a
measure out of accord with the penal goals of retribution and de-
terrence,’ for ‘fines are a source of revenue,’ while other forms of
punishment ‘cost a State money.’” Id. (citing Harmelin v. Michi-
gan, 501 U.S. 957, 978 n.9, 111 S. Ct. 2680, 2693 n.9 (opinion of
Scalia, J.) (“it makes sense to scrutinize governmental action more
closely when the State stands to benefit”)). 13
What is key from this statement in Timbs is that the Court
is looking at the traditional purposes of punishment—retribution
and deterrence—in evaluating the Excessive Fines Clause, now
codified in § 3553(a). This makes sense because the Eighth Amend-
ment was not written on a blank slate. The venerable history of
the Eighth Amendment, tracing back from Magna Carta, should
inform how we view the content of the Eighth Amendment.
13 Because the “Excessive Fines Clause was drafted in an era in which the
amount of a fine was determined solely by the judiciary” and “the Clause was
thus intended as a limitation on courts, not legislatures,” it falls on us to scru-
tinize fine schemes, especially where there is no indication that Congress fil-
tered these fines through the § 3553(a) factors as it would have done in the
criminal context. United States v. 817 N.E. 29th Drive, 175 F.3d at 1309 n.8.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 19
We know that at common law, “colonial courts fashioned
sentences with three basic purposes in mind: to punish the offender
for his crime, thereby satisfying society’s desire for retribution
(‘punishment’); to deter others from committing the same crime
by demonstrating its disadvantageous consequences (‘general de-
terrence’); and to incapacitate the wrongdoer, so as to protect soci-
ety from further criminal activity (‘specific deterrence’ or ‘incapac-
itation’).” Scroggins, 880 F.2d at 1206. In light of these common-
law goals and the Eighth Amendment’s incorporation of the com-
mon law, our first goal should be to figure out how the historical
common law—from Magna Carta to our Constitution—viewed
the traditional purposes of punishment in the context of excessive
fines.
In the 1600s, Sir Edward Coke described Magna Carta as
“but a confirmation or restitution of the Common Law.” 1 Edward
Coke, Institutes of the Lawes of England (1608), reprinted in 2 The
Selected Writings and Speeches of Sir Edward Coke § 108, at 697
(Steve Sheppard ed., 2003); see generally Brief of Professor John F.
Stinneford as Amicus Curiae in Support of Neither Party, Kahler v.
Kansas, 140 S. Ct. 1021 (2019) (No. 18-6135). And the English com-
mon law interpreted Magna Carta as requiring that fines be “rea-
sonable and proportional.” Brief of Stinneford, at 9; see Richard
Godfrey’s Case, 11 Co. 42a, 44a., 77 Eng. Rep. 1199, 1202 (1615)
(explaining that “the reasonableness of the fine shall be adjudged
by the justices; and, if it appears to them to be excessive, it is against
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20 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
the law, and shall not bind.”).14 Under Magna Carta, “imprison-
ment ought always to be according to the quality of the offence.”
Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng. Rep. 1015 (1615).
Although there is some debate about the impetus for the
1689 English Bill of Rights, most scholars agree that it was neces-
sary because of the Stuart kings’ drift away from the principles of
Magna Carta during the late 1600s. By this time, the idea of exces-
sive fines had come to incorporate the principle that the punish-
ment imposed should be in keeping with the traditional common-
law sentence for that particular crime. See Harmelin, 501 U.S. at973–74, 111 S. Ct. at 2690 (explaining that during the 1600s in Eng-
land “a punishment [wa]s not considered objectionable because it
[wa]s disproportionate, but because it [wa]s out of the Judges’
Power, contrary to Law and ancient practice, without Precedents
or express Law to warrant, unusual, illegal, or imposed by Pretence
to a discretionary Power” (internal quotation marks and citation
omitted)). So, during this period, too, the common law was the
bedrock of sentencing. 15
14Godfrey’s Case draws from both the law of amercements and fines in deter-
mining whether the particular fine in that case was excessive. See 77 Eng. Rep.
at 1202.
15 Harmelin seems to question whether the historical Excessive Fines Clause
analysis more properly looks at proportionality or legality. In other words,
Harmelin creates a distinction as to whether the common-law excessive fines
analysis would have looked at a sentence’s departure from the common-law
sentence or a sentence’s lack of proportionality to an offense for determining
excessiveness. 501 U.S. at 973, 111 S. Ct. at 2690. I believe this is a false
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 21
With that background, I turn to Blackstone’s Commen-
taries. The Supreme Court has described Blackstone’s Commen-
taries as “more read in America before the Revolution than any
other law book.” C.J. Hendry Co. v. Moore, 318 U.S. 133, 151, 63
S. Ct. 499, 509 (1943); see also Schick v. United States, 195 U.S. 65,
69, 24 S. Ct. 826, 827 (1904) (“Blackstone’s Commentaries are ac-
cepted as the most satisfactory exposition of the common law of
England. At the time of the adoption of the Federal Constitution,
it had been published about twenty years, and it has been said that
more copies of the work had been sold in this country than in Eng-
land; so that undoubtedly, the framers of the Constitution were fa-
miliar with it.”). 16
dichotomy. Presumably, the common-law sentencing regime naturally incor-
porated proportionality and the traditional purposes of punishment. So, a de-
parture from the common-law regime would necessarily be a departure from
proportionality. There may be a time when we think a common-law punish-
ment is disproportionate to an offense, and thus applying the legality test for
excessiveness may yield a different outcome from the proportionality test. But
I think such an instance would be rare and would only reflect that the common
law itself has departed from the traditional purposes of punishment. Cf. Gra-
ham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 2021 (2010) (“For the most
part, however, the Court’s precedents consider punishments challenged not
as inherently barbaric but as disproportionate to the crime. The concept of
proportionality is central to the Eighth Amendment.”).
16And from its inception to the present, the Supreme Court has relied on
Blackstone to understand how the framers viewed the common law. See, e.g.,
Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 442–43, 1 L.Ed. 440 (1793) (extensively
quoting Blackstone to determine the contours of sovereign immunity prior to
the enactment of the Eleventh Amendment); Marbury v. Madison, 5 U.S. (1
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22 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
Blackstone had much to say about whether a fine is exces-
sive. His commentaries explain that “[t]he reasonableness of fines
in criminal cases17 has also been usually relegated by the determi-
nation of Magna Carta, concerning amercements for misbehavior
in matters of civil right.” Blackstone took his view from the lan-
guage of the Magna Carta as follows: “Liber homo non amercietur
pro parvo delicto, nisi secundum modum ipsius delicti; et pro
magno delicto, secundum magnitudinem delicti; salvo contene-
mento suo: et mercator eodem modo, salva mercandisa sua; et vil-
lanus eodem modo amercietur, salvo wainagio suo.” 4 William
Cranch) 137, 147–48, 2 L.Ed. 60 (1803) (looking to Blackstone to define a writ
of mandamus); United States v. Wong Kim Ark, 169 U.S. 649, 659, 18 S. Ct.
456, 461 (1898) (using Blackstone to define the right of citizenship in the United
States under the Citizenship Clause); C.J. Hendry Co. v. Moore, 318 U.S. 133,
151, 63 S. Ct. 499, 509 (1943) (calling on Blackstone to carve out the contours
of admiralty jurisdiction); United States v. Hayman, 342 U.S. 205, 221 n.35, 72
S. Ct. 263, 273 n.35 (1952) (using Blackstone to expound on the meaning and
breadth of habeas corpus); Morissette v. United States, 342 U.S. 246, 251, 72 S.
Ct. 240, 244 (1952) (equating Blackstone’s view of intent with the English com-
mon law and American common law); Bucklew v. Precythe, 139 S. Ct. 1112,
1123 (2019) (turning to Blackstone to explicate the original meaning of the
Eighth Amendment’s Cruel and Unusual Punishments Clause).
17 Although Blackstone singles out criminal cases, the protection against ex-
cessive fines in the English Bill of Rights of 1689 “included more than protec-
tion from criminal fines; it also provided a great deal of protection with respect
to civil fines [i.e., amercements].” Calvin Massey, The Excessive Fines Clause
and Punitive Damages: Some Lessons from History, 40 Vand. L. Rev. 1233,
1275 (1987). And since FCA fines are essentially punitive in nature, serving the
same purpose as criminal fines at common law, I do not hesitate to apply
Blackstone’s analysis here.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 23
Blackstone’s Commentaries *379 (Lewis ed. 1902) (internal quota-
tion marks omitted). Blackstone summarized that “no man shall
have a larger amercement imposed upon him, than his circum-
stances or personal estate will bear: saving to the landholder his
contenement, or land; to the trader his merchandise; and to the
countryman his wainage, or team and instruments of husbandry.”
Id.In short, Blackstone’s Commentaries look at both the char-
acteristics of the offender and offense in determining the appropri-
ate fine. Cf. § 3553(a)(1) (explaining that the court must look at
“the nature and circumstances of the offense and the history and
circumstances of the defendant” in imposing a sentence). And the
principle of proportionality based on the offense and the defend-
ant’s ability to pay was embodied in the common law as evidenced
by how states interpreted their own excessive fines clauses. See
Steptoe v. The Auditor, 24 Va. 221, 234 (Va. 1825) (describing a law
and explaining that “[i]t would be excessive, as bearing no propor-
tion whatever to the nature of the offence, not even graduated by
the amount due” (emphasis in original)); Commonwealth v. Mor-
rison, 9 Ky. 75, 99 (Ky. 1819) (“The fine imposed should bear a just
proportion to the offense committed, the situation, circumstances
and character of the offender. That proportion must be ascertained
by the sound discretion of the court: a flagrant transcension by the
legislature in fixing the fine of that just relative proportion between
offense and fine, would be denominated excessive.”); cf. § 3572 (di-
recting the court to look at the “defendant’s income, earning
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24 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
capacity, and financial resources” in determining the appropriate
criminal fine).
This proportionality analysis tracks the traditional purposes
of punishment of general deterrence, specific deterrence, and retri-
bution. Blackstone, quoting Montesquieu, explained that “exces-
sive severity of laws [out of proportion to the offense] . . . hinders
their execution.” 4 William Blackstone’s Commentaries *17; cf. §
3553(a) (“The court shall impose a sentence sufficient, but not
greater than necessary, to comply with the” traditional purposes of
punishment); § 3553(a)(2)(A) (explaining that a sentence should
“reflect the seriousness of the offense, [] promote respect for the
law, and [] provide just punishment for the offense”). And he de-
fined excessiveness in relation to laws that do not have “due dis-
tinctions of severity,” with the common law as the baseline. Id.
American common law, incorporating the traditional purposes of
punishment, tracks this reasoning. See, e.g., Barker v. People, 3
Cow. 686, 694 (N.Y. 1824) (looking at the common law to deter-
mine what kinds of punishment were unusual for purposes of the
state’s version of the Eighth Amendment); Jones v. Common-
wealth, 5 Va. 555, 558 (Va. 1799) (determining that a joint fine was
excessive because the common law forbade such fines); see also
Johnson v. Tompkins, 13 F. Cas. 840, 848 (E.D. Pa. 1833) (“Here [in
Pennsylvania] punishment is graduated in proportion to the enor-
mity of the offence, and cruel punishments are expressly forbidden
by the constitution, as well as excessive fines (article 9, § 13) and by
the eighth amendment to the constitution of the United States.”);
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 25
Ingraham v. Wright, 430 U.S. 651, 670 (1977) (focusing on the com-
mon-law limits to corporal punishment in the Eighth Amendment
context).
In other words, at common law, the inquiry into excessive-
ness hinged on an analysis of an individual defendant with individ-
ual characteristics and an individual crime. Cf. § 3553(a). The com-
mon-law analysis of the Eighth Amendment, therefore, mirrors the
evaluation of the traditional purposes of punishment, as they are
codified in § 3553(a). So, it makes sense that if the Eighth Amend-
ment incorporates the common law and its traditional purposes of
punishment, and the common law performed an individual analy-
sis for excessiveness, that we too should opt for a particularized
analysis for excessive fines.
I suggest that district courts should apply the § 3553(a) fac-
tors (and thus the § 3572 factors) to the FCA context as the test for
excessiveness of civil fines under the Eighth Amendment. 18 To do
18Judge Newsom takes issue with my suggestion that the § 3553(a) factors be
used as a way of implementing the constitutional standard for excessiveness
because this approach “lacks (so far as [he] can tell) any firm footing in the text
or history of the Excessive Fines Clause.” Newsom Op. at 14 n.6. I find this
criticism unavailing. Judge Newsom signs on to the Court’s opinion applying
the Browne factors (derived from Bajakajian) to the civil fines context. The
Browne factors, by that name, are nowhere in the common-law history of the
Excessive Fines Clause, so the same critique could be leveled against them.
But their goal is to distill the common-law purposes of punishment into a test
that respects the original meaning of the Eighth Amendment. Both the Court’s
opinion today and my own approach are simply implementing doctrines, not
the Constitution itself, based on the common law. My approach, the
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26 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
so would be to create a set of standards for district courts to apply
that accords with common law, and it would give us something to
review on appeal. In practice, district courts would hold eviden-
tiary hearings to allow the defendant, pulling from the §§ 3553(a)
and 3572 factors, to explain why the purposes of punishment—i.e.,
retribution, general deterrence, and specific deterrence—are not
served by the penalty the Government (or qui tam relator) seeks to
impose.
The constitutional analysis for excessive fines puts the bur-
den on the defendant bringing the constitutional challenge to pro-
vide evidence as to how the proposed statutory penalty fails to ac-
cord with the traditional purposes of punishment. The defendant’s
goal would be to show that the fine is disproportionate to the of-
fense. And the Government may respond with evidence of its own
to rebut the defendant’s challenge. The district court’s task is to
assess the evidence before it and determine how the characteristics
of the offense and the characteristics of the offender correspond to
the fine in question. See William Blackstone’s Commentaries *15–
16 (“To kill a man upon sudden and violent resentment is less pe-
nal, than upon cool deliberate malice. The age, education, and
character of the offender; the repetition (or otherwise) of the of-
fense; the time, the place, the company wherein it was committed;
application of the § 3553(a) factors as the Excessive Fines Clause test for civil
fines, takes account of the fact that the § 3553(a) factors are just an adoption of
the common-law purposes of sentencing and reflect the policy underpinnings
of punishment throughout our nation’s history.
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20-10276 TJOFLAT, J., Concurring in Part and Dissenting in Part 27
all these, and a thousand other incidents, may aggravate or exten-
uate the crime.”). The best way for the district court to follow the
common-law model is to evaluate the § 3553(a) factors.
Section 3572 is simply an explication of the § 3553(a) factors.
It directs the district court to look at factors like the defendant’s
income, the burden the fine would impose on the defendant or his
dependents, the harm caused by the defendant, how much restitu-
tion is made, the need to take away from the defendant illegal
profit, and the costs to the government of the defendant’s miscon-
duct. These are exactly the kind of factors that common-law courts
considered when imposing a fine, and they serve as the ideal guide
for today’s district courts when trying to conduct an Eighth
Amendment analysis for excessive fines. In other words, the Ex-
cessive Fines Clause analysis should be holistic, considering all the
individual facts of the case, not a wooden application of Bajakajian.
It is worth noting that, in reviewing the evidence, even the
statutory minimum penalty is in clear focus, and the district court
might find that based on the evidence before it even the statutory
minimum range is too high. In the event that the district court finds
that the statutory minimum range is excessive in relation to the
offense, it may lower the fine amount to correspond to the tradi-
tional purposes of punishment and must provide a reasoned expla-
nation as to how it came to that determination.19 This also goes to
19The District Court seemed to believe that Killough prevented it from mak-
ing the fine less than the minimum statutory fine per claim. See also United
States v. Bornstein, 423 U.S. 303, 313, 96 S. Ct. 523, 529 (1976) (assuming that
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28 TJOFLAT, J., Concurring in Part and Dissenting in Part 20-10276
reviewability because such a reasoned explanation allows us to
evaluate the district court’s reasoning and usage of the § 3553(a)
factors in the constitutional analysis.
And, in 1998, the Supreme Court confirmed that proportion-
ality is the “touchstone” of the Excessive Fines Clause. Bajakajian,
524 U.S. at 334, 118 S. Ct. at 2036. And using the traditional pur-
poses of punishment as a set of guideposts honors the tradition of
proportionality because it considers the characteristics of the of-
fender and the characteristics of the offense in each case. I would
remand so that the District Court could allow the defendant to pre-
sent evidence on both the characteristics of the offense and the of-
fender. To do otherwise would be to allow an arbitrary fine to
stand under the Excessive Fines Clause.
statutory fines would be stacked outside the Eighth Amendment context). But
Killough only clarified how statutory fines should be assessed under the FCA.
See Killough, 848 F.2d at 1533. It did not say anything about how the Exces-
sive Fines Clause interacts with the statutory scheme. Killough does not pre-
vent a defendant from bringing an as-applied constitutional challenge to even
the minimum statutory fine amount based on Excessive Fines Clause grounds.
On a separate note, Killough adopted the Seventh Circuit view that “imposi-
tion of forfeitures under the Act is not discretionary, but is mandatory for each
claim found to be false.” Id. (citing United States v. Hughes, 585 F.2d 284, 286
(7th Cir. 1978)). That is, according to Killough, penalties must be stacked as a
statutory matter. However, Killough was not considering stacking based on
a constitutional challenge, and I suggest that in another case stacking could be
challenged on Eighth Amendment as-applied grounds in the same way that
the amount per violation could be challenged.