United States v. James Wegeler ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1717
_____________
UNITED STATES OF AMERICA
v.
JAMES WEGELER
*Jean Charte,
Appellant
*(Amended Per the Clerk’s Order dated 12/27/17)
______________
On Appeal from the United States
District Court for the District of New Jersey
(D.C. Crim. Action No. 3-16-cr-00273-001)
District Judge: Honorable Anne E. Thompson
_____________
No. 17-1718
_____________
UNITED STATES OF AMERICA, ex rel. ***
JEAN CHARTE
v.
AMERICAN TUTOR, INC., JAMES WEGELER, JR.;
JAMES WEGELER, SR.; SEAN WEGELER**
*Jean Charte,
Appellant
*(Amended per the Clerk’s Order dated 12/27/17)
**(Amended per the Clerk’s Order dated 1/25/18)
***(Amended per the Clerk's Order dated 5/7/18)
_____________
On Appeal from the United States
District Court for the District of New Jersey
(D.C. Civ. Action No. 3-10-cv-03318)
District Judge: Mary L. Cooper
_____________
No. 17-8009
_____________
UNITED STATES OF AMERICA
v.
JAMES WEGELER
*Jean Charte,
2
Petitioner
*(Amended per the Clerk’s Order dated 12/27/17)
______________
On Petition to File an Appeal pursuant to 31 U.S.C. §
3739(b)(2)
from the United States District Court for the District of New
Jersey
(D.C. Crim. Action No. 3-16-cr-00273-001)
District Judge: Honorable Anne E. Thompson
______________
Argued on April 19, 2018
______________
Before: GREENAWAY, JR., RENDELL and FUENTES,
Circuit Judges.
(Opinion Filed: October 28, 2019)
Sean F. Byrnes [Argued]
Byrnes O’Hern & Heugle
28 Leroy Place
Red Bank, NJ 07701
Counsel for Appellant/Petitioner
Mark E. Coyne
Anthony J. LaBruna, Jr.
John F. Romano
Office of United States Attorney
970 Broad Street
3
Room 700
Newark, NJ 07102
Charles W. Scarborough
William E. Havemann [Argued]*
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellee/Respondent
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
Our criminal justice apparatus is not the Eye of
Providence. Though ever vigilant, it cannot see all, and it is
mightily aware of that. So it relies on the eyes and ears of
private citizens from many walks of life. These citizens are
rewarded for their heroics at times, but their rewards rarely, if
ever, amount to an expectation, let alone an interest, that they
can pursue in the criminal case of another. This is because, as
the Supreme Court has observed, “in American jurisprudence
at least, a private citizen lacks a judicially cognizable interest
in the prosecution or non[-]prosecution of another.” Linda R.S.
(“Linda”) v. Richard D., 410 U.S. 614, 619 (1973).
Jean Charte insists that she is the anomaly. Her case
rests on the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–
*
William E. Havemann withdrew as counsel on July 19, 2018,
prior to the issuance of this opinion.
4
3733 (2012), which is a statute that Congress enacted during
the Civil War to stem fraud against the federal government.
United States v. Bornstein, 423 U.S. 303, 309 (1976). The
FCA includes a qui tam1 provision to encourage actions by
private individuals—called relators—who are entitled to a
portion of the amount recovered, subject to certain limitations.
See § 3730(b), (d). In turn, a relator is required to provide the
government with the information she intends to rely on so that
the government can make an informed decision as to whether
it should intervene. § 3730(b)(2). In the event that the
government elects to pursue what is ultimately its claim
through an “alternate remedy,” the statute provides that the
relator retains the same rights she would have had in the FCA
action. § 3730(c)(5).
Charte instituted an FCA action alleging that the
defendants, including James Wegeler, Sr., submitted false
reimbursement claims to the United States Department of
Education. She provided the requisite information to the
government and cooperated with the government while it
determined whether it would intervene. During this period, the
information she provided led directly to an investigation that
resulted in the criminal prosecution of Wegeler, Sr., for tax
1
“Qui tam is short for the Latin phrase qui tam pro
domino rege quam pro se ipso in hac parte sequitur, which
means who pursues this action on our Lord the King’s behalf
as well as his own.” United States ex rel. Charte v. Am. Tutor,
Inc., 934 F.3d 346, 347 n.1 (3d Cir. 2019) (internal quotation
marks omitted) (quoting Vt. Agency of Nat. Res. v. U.S. ex rel.
Stevens, 529 U.S. 765, 768 n.1 (2000)).
5
fraud and tax evasion. Wegeler, Sr. ultimately entered into a
plea agreement that required him to pay $1.5 million in
restitution. He paid the restitution by the time he was
sentenced. Subsequently, the government declined to
intervene in the FCA action.
Charte learned of the plea agreement and tried to
intervene in the criminal proceeding to secure her alleged
interest in a share of the restitution. Her motion to do so was
denied, however. Her appeal to us thus presents a question of
first impression for our Court: whether a criminal proceeding
constitutes an “alternate remedy” to a civil qui tam action under
the FCA, entitling a relator to intervene in the criminal action
and recover a share of the proceeds pursuant to § 3730(c)(5).
We determine that the rights to participate in a
proceeding that the alternate-remedy provision provides a
relator does not extend to a criminal proceeding. Such a
holding would be tantamount to an interest in participating as
a co-prosecutor in the criminal case of another. Charte’s
important aid to the government notwithstanding, she lacks
standing to assert such an interest under “the long line of
precedent holding that a [private individual] lacks a judicially
cognizable interest in [another]’s prosecution” and likewise,
“in [another’s] sentence.” United States v. Stoerr, 695 F.3d
271, 277–78 (3d Cir. 2012). Even if we focused on only her
alleged interest in a share of the restitution, nothing in the FCA
suggests that a relator has a right to intervene in the
government’s alternative-remedy provision proceeding for the
purpose of asserting this interest. The text and sparse
legislative history regarding the alternate-remedy provision
counsel otherwise, as they together make clear that the court
overseeing the FCA suit determines whether and to what extent
a relator is entitled to an award. Our holding is
6
straightforward—a qui tam relator lacks standing to intervene
as to her rights to prosecute a case alongside the government,
and lacks a basis to do so as to her right to an award. We will
therefore affirm the District Court. As was evident before this
action, Charte may pursue her right to an award by conducting
the FCA action.
I. Background
A. Legal
An action under the FCA can be brought either by the
government or a private person “in the name of the
Government.” 31 U.S.C. § 3730(a), (b). If such a person—
known as a relator—files the action, the complaint is filed in
camera, sealed for at least sixty days, and served on the
government but not the defendant until so ordered by the court.
§ 3730(b)(2). The government can move for “extensions of the
time during which the complaint remains under seal” for good
cause. § 3730(b)(3). Before the end of the expiration of time,
the government must either “proceed with the action, in which
case the action shall be conducted by the Government,” or
“notify the court that it declines to take over the action, in
which case the person bringing the action shall have the right
to conduct the action.” § 3730(b)(4).
If the government intervenes and proceeds with the
FCA action, “it shall have the primary responsibility for
prosecuting the action, and shall not be bound by an act of the
person bringing the action . . . .” § 3730(c)(1). However, the
relator retains “the right to continue as a party to the action,”
subject to certain limitations. Id. In addition, the relator
“receive[s] at least 15 percent but not more than 25 percent of
the proceeds of the action or settlement of the claim, depending
7
upon the extent to which the person substantially contributed
to the prosecution of the action.” § 3730(d)(1). That amount
is reduced to “no more than 10 percent” if
the action is one which the court finds to be based
primarily on disclosures of specific information
(other than information provided by
the person bringing the action) relating to
allegations or transactions in a criminal, civil, or
administrative hearing, in a congressional,
administrative, or Government Accounting
Office report, hearing, audit, or investigation, or
from the news media . . . .”
Id.
Where the Government declines to intervene, “the
person who initiated the action shall have the right to conduct
the action,” although “the court, without limiting the status and
rights of the person initiating the action, may nevertheless
permit the government to intervene at a later date upon a
showing of good cause.” § 3730(c)(3). When the relator
conducts the action, she shall receive an amount “not less than
25 percent and not more than 30 percent of the proceeds of the
action or settlement.” § 3730(d)(2).
This assortment of rights is rounded out by the FCA’s
alternate-remedy provision, under which the government may
“elect[] to pursue its claim through any alternate remedy
available to the Government, including any administrative
proceeding to determine a civil money penalty.” § 3730(c)(5)
(emphasis added). And “[i]f any such alternate remedy is
pursued in another proceeding, the person initiating the action
shall have the same rights in such proceeding as such person
8
would have had if the action had continued under” the FCA.
Id. (emphasis added). Moreover, “[a]ny finding of fact or
conclusion of law made in such other proceeding that has
become final shall be conclusive on all parties to” the FCA
action. Id.
This framework sets the stage for the case at hand.
B. Factual and Procedural
Charte worked at American Tutor, Inc., a business that
received Title I funds to provide supplemental educational
services to New Jersey school districts. She alleged that,
during her employment, she noticed questionable billing
practices, including billing for absent students and services not
provided. She filed a qui tam complaint in 2010, after her
termination in 2007. The complaint, under the FCA and New
Jersey False Claims Act, N.J. Stat. Ann. §§ 2A:32C-1 to -18
(West 2010), alleged that the defendants submitted false claims
for reimbursement to the United States Department of
Education. The district court stayed the proceeding and kept it
under seal until 2017, when the Government ultimately
declined to intervene. In the interim, Charte and her counsel
“provided information, documents and even deposition
testimony from a separate matter” to the government.
Appellant Br. 15; see JA 83.
While the FCA suit was still unresolved, the
government brought criminal charges against Wegeler, Sr. for
tax fraud and tax evasion. Wegeler, Sr. pleaded guilty. The
plea agreement requested restitution in the amount of $1.5
million representing the tax loss. It states:
9
This agreement was reached without regard to
any civil or administrative matters that may be
pending or commenced in the future against
JAMES WEGELER. This agreement does not
prohibit the United States . . . or any third party
from initiating or prosecuting any civil or
administrative proceeding against JAMES
WEGELER.
Plea Agreement 5, ECF No. 4, United States v. Wegeler, No.
16-0273 (D.N.J. June 13, 2016). Wegeler, Sr. paid the
restitution amount by the time of sentencing.
In October 2016, before Wegeler, Sr. was sentenced,
Charte filed a motion to intervene in the criminal proceeding,
alleging a right to a relator’s award from the restitution amount.
She also filed the same motion in the FCA proceeding. At the
hearing on Charte’s motion to intervene in the criminal case,
the government admitted that it likely would not have focused
on Wegeler, Sr., as a potential subject of a criminal proceeding,
if Charte had not named him in the qui tam action.
The District Court denied the motion, noting that
nothing here warranted an exception to the general rule that
private citizens “lack[] a judicially cognizable interest in the
prosecution or non-prosecution of another” and no Federal
Rule of Criminal Procedure permits intervention. JA 10
(quoting United States v. Kurlander, 24 F. Supp. 3d 417, 424
(D.N.J. 2014)). It rejected Charte’s argument that the criminal
proceeding was an “alternate remedy” under the FCA,
particularly in this case where the FCA’s bar on Internal
Revenue Code qui tam claims meant that Charte could not have
included tax fraud allegations in her complaint.
10
The district court in the FCA action later granted
summary judgment in favor of the defendants. The court
applied New Jersey preclusion law and held that Charte’s
settlement and dismissal of a state case that alleged defamation
and other claims arose out of the same transaction and
occurrence and among substantially the same parties, therefore
barring her FCA suit. Charte appealed the summary judgment
decision. Since this case could be affected by that appeal, we
held it C.A.V. pending resolution of the appeal. The district
court’s summary judgment decision was reversed on August
12, 2019. Am. Tutor, Inc., 934 F.3d at 354 (holding that New
Jersey’s entire controversy doctrine did not apply to bar
Charte’s federal qui tam action). We now turn to this case.
II. Jurisdiction and Standard of Review
A. Jurisdiction
Charte’s contention comes by way of three appeals,
only one of which—the appeal from the denial of intervention
in the criminal proceeding, docketed as No. 17-1717—is
11
properly before us.2 The District Court had jurisdiction over
that proceeding under 18 U.S.C. § 3231.3
We lack jurisdiction over the appeals in the FCA action,
No. 17-1718. Charte filed her notice of appeal in the FCA case
concerning the motion to intervene after her thirty days to
appeal had expired, see Fed. R. App. P. 4(a). The district court
never extended the time to appeal.4 Thus, even if she were able
2
We need not determine whether a motion to intervene
as of right in criminal cases is immediately appealable as it is
in civil cases, see McClune v. Shamah, 593 F.2d 482, 485 (3d
Cir. 1979), because the notice became ripe once a judgment
was entered, see Khan v. Att’y Gen. of U.S., 691 F.3d 488, 494
n.3 (3d Cir. 2012) (stating that a premature notice is sufficient
“so long as the notice of appeal adequately advised the
government of what was being appealed, the premature filing
did not cause prejudice, and the notice of appeal was not filed
extraordinarily prematurely”).
3
The District Court denied Charte’s motion to
intervene on January 31, 2017, and Charte filed her notice of
appeal on March 28, 2017. The District Court subsequently
granted her request for an extension of time to file the notice
because of technical issues.
4
Charte argues that she was entitled to sixty days to
file an appeal in the FCA case because the government, having
not decided whether to intervene at the time the notice was
filed, was a party to the case. Her argument is unpersuasive,
and her attempt to distinguish United States ex rel. Eisenstein
v. City of New York, 556 U.S. 928 (2009), is belied by the clear
language in that case. Id. at 931 (“Although the United States
is aware of and minimally involved in every FCA action, we
12
to appeal the interlocutory order, her notice of appeal was
untimely, and we lack appellate jurisdiction in No. 17-1718.
Charte’s “Petition for Permission to Appeal,” (No. 17-
8009) meanwhile, was filed fifty-eight days after the District
Court’s January 31, 2017 order denying her motion to
intervene and did not identify any statute or rule authorizing
the appeal. We discern no basis to exercise appellate
jurisdiction over it, see Fed. R. App. P. 5(b)(1)(D), and the
earlier referral of the appeal to a merits panel does not
eliminate this Court’s responsibility to ensure that we have
jurisdiction. Anthony v. Council, 316 F.3d 412, 416 (3d Cir.
2003); see also FW/PBS Inc. v. City of Dallas, 493 U.S. 215,
230-31 (1990) (We review our subject matter jurisdiction over
the matter Aeven if the courts below have not passed on it, and
even if the parties fail to raise the issue before us.@).
B. Standard of Review
As to the standard of review for No. 17-1717,
“[a]lthough we generally review dispositions of motions to
intervene for abuse of discretion, the district court here did not
exercise discretion in denying the motion to intervene but
barred the claims because of its legal conclusion” that Charte
does not have a basis to intervene in a criminal proceeding.
Nelson v. Cty. Of Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995).
Our review is plenary where that is the case. Id.
hold that it is not a ‘party’ to an FCA action for purposes of the
appellate filing deadline unless it has exercised its right to
intervene in the case.”).
13
III. Discussion
Charte casts a wide net in framing the question on
appeal,5 but it is simply “whether a criminal . . . proceeding
constitutes an ‘alternate remedy’ to a civil qui tam action under
the False Claims Act, entitling a relator to intervene in the
criminal action and recover a share of the proceeds pursuant to
31 U.S.C. § 3730(c)(5).” United States v. Van Dyck, 866 F.3d
1130, 1131 (9th Cir. 2017). The answer is no. First, a relator
lacks standing to intervene in the criminal prosecution of
another. Moreover, the FCA does not provide a right to
intervene to recover a share of the proceeds derived from a
proceeding that the government pursues under the alternate-
remedy provision.
5
Charte frames the question in four different ways: as (1)
“[w]hether the Court erred when it found that the criminal
proceeding against the Defendant James Wegeler, Sr., did not
constitute an ‘alternate remedy’ . . . [,]” (2) “[w]hether the
Court erred when it determined that the Relator in this qui tam
proceeding could not intervene in a criminal proceeding that
constituted an ‘alternate remedy’ . . . [,]” (3) “[w]hether the
Relator may recover a relator’s share award from the restitution
paid by the criminal Defendant within a proceeding that
constitutes an ‘alternate remedy’ . . . [,]” and (4) “[w]hether the
Government can rely upon 31 U.S.C. § 3729(d) where as here
the Relator has not alleged any violations of the IRC in her
Complaint.” Appellant’s Op. Br. 7.
14
A.
The rights the FCA provides to a relator when the
government “proceeds with the action” and that would also be
afforded to a relator if the government pursues an alternate
remedy under § 3730(c)(5) are twofold.
First, a relator “shall have the right to continue as a
party to the action . . . .” § 3730 (c)(1) (emphasis added). This
encompasses a suite of rights to participate in a proceeding
pursuant to the alternate-remedy provision, consisting of the
rights to: (i) notice and an opportunity to be heard if the
government moves to dismiss the action, (ii) object to a
settlement so that the court can ensure it is “fair, adequate, and
reasonable under all the circumstances,” and (iii) an otherwise
unrestricted ability to participate “during the course of
litigation” unless the government shows that such “unrestricted
participation . . . would interfere with or unduly delay the
Government’s prosecution of the case, or would be repetitious,
irrelevant,” or if, “for purposes of harassment,” the court
decides “in its discretion” to “impose limitations on the
person’s participation . . . .” § 3730(c)(2)(A)–(D). The
limitations consist of “(i) limiting the number of witnesses the
person may call; (ii) limiting the length of the testimony of
such witnesses; (iii) limiting the person’s cross-examination of
witnesses; or (iv) otherwise limiting the participation by the
person in the litigation.” § 3730(c)(2)(C). Second, a relator has
a right to “at least 15 percent but not more than 25 percent” of
the proceeds that result from such an action, or, under certain
circumstances, “no . . . more than 10 percent.” § 3730(d)(1).
The Senate Report regarding this provision sums up
many of these rights as: “the qui tam relator retains all the
same rights to copies of filings and depositions, to objections
15
of settlements or dismissals, to taking over the action if the
Government fails to proceed with ‘reasonable diligence’, as
well as to receiving a portion of any recovery.” S. Rep. 99-
345, at 27 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266,
5292.6
6
The Sixth Circuit has noted that “the quoted passage of the
Senate Report refers to § 3730(c)(3), not § 3730(c)(5),
suggesting that it might refer to an earlier draft of the 1986
FCA amendments.” United States ex rel. Bledsoe v. Cmty.
Health Sys., Inc., 342 F.3d 634, 648 (6th Cir. 2003). However,
the proposed legislative language in the report concerning the
alternate-remedy provision is substantially similar to that
which appears in the current text. Compare S. Rep. 99-345, at
42 (“Notwithstanding subsection (b), the Government may
elect to pursue its claim through any alternate remedy available
to it, including, but not limited to, any administrative civil
money penalty proceeding.” (italics removed)), with 31 U.S.C.
§ 3730(c)(5) (“Notwithstanding subsection (b), the
Government may elect to pursue its claim through any alternate
remedy available to the Government, including any
administrative proceeding to determine a civil money
penalty.”).
The Sixth Circuit also stated that the report may be
internally inconsistent in that it suggests both that the
Government must first intervene before pursuing an alternate
remedy, see S. Rep. 99-345, at 42 (“Subsection (c)(3)
of section 3730 clarifies that the Government, once it
intervenes and takes over a false claim suit brought by a private
individual, may elect to pursue any alternate remedy . . . .”
(emphasis added)), and that pursuit of an alternate remedy is
an either/or, see id. (“[T]he Government must elect to pursue
16
1.
The assertion of the first set of rights in the criminal case
of another whereby the relator would be a party to the action
would amount to an interest in that person’s prosecution.
Indeed, relators would essentially have a voice in whether and
how the government would go about securing a guilty verdict
(or plea), as well as in determining the sentence(s) it will ask
the court to impose. That is squarely at odds with the long held
tradition of American jurisprudence that “a private citizen
lacks a judicially cognizable interest in the prosecution or
non[-]prosecution of another.” Linda, 410 U.S. at 619.
the false claims action either judicially or administratively . .
. .”). Bledsoe, 342 F.3d at 648. Courts have adopted that the
latter interpretation. See id. at 647 (“We hold that ‘alternate
remedy’ refers to the government’s pursuit of any alternative
to intervening in a relator’s qui tam action.”); United States ex
rel. Barajas v. U.S., 258 F.3d 1004, 1010 (9th Cir. 2001) (“An
alternate remedy under § 3730(c)(5) is a remedy achieved
through the government’s pursuit of a claim after it has chosen
not to intervene in a qui tam relator’s FCA action.”); United
States ex rel. LaCorte v. Wagner, 185 F.3d 188, 192 (4th Cir.
1999) (“Section 3730(c)(5) assumes that the original qui tam
action did not continue.”); United States ex rel. Dunleavy v.
Cty. of Delaware, 123 F.3d 734, 739 (3d Cir. 1997) (noting the
“Government’s right to proceed administratively as an
alternate remedy to an FCA action”), abrogated on other
grounds by Graham Cty. Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 559 U.S. 280 (2010).
17
The tradition derives from the Case or Controversy
Clause of Article III of the Constitution, which “establish[es
an] irreducible constitutional minimum of” an injury in fact7
that is caused by the conduct complained of and which is likely
to be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). While “Congress may
enact statutes creating legal rights, the invasion of which
creates standing,” Linda, 410 U.S. at 617 n.3, the injury-in-fact
requirement does not dissipate “whenever a statute grants a
person a statutory right and purports to authorize that person to
sue to vindicate that right.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1549 (2016). Congress is merely capable of invoking
the absolute limit of this Constitutional floor by “creating legal
rights, the invasion of which creates [injury],” where none
would have previously existed. Linda, 410 U.S. at 617 n.3.
In that vein, as to the interest created by the first set of
rights the FCA provides relators, the District Court properly
assessed that an interest in the prosecution or non-prosecution
of an individual has been considered too generalized and
speculative to meet the floor set by Article III. See, e.g., Lujan,
504 U.S. at 576 (“Vindicating the public interest . . . is the
function of Congress and the Chief Executive.” (emphasis in
original)). Even where Congress has authorized a private
individual “to enforce public rights in their own names,” the
Supreme Court has required her to “demonstrate that the
violation of that public right has caused [her] a concrete,
7
“Injury in fact” is defined as “an invasion of a legally
protected interest which is (a) concrete and particularized . . .
and (b) actual or imminent, not ‘conjectural or
‘hypothetical[.]’” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (citations omitted).
18
individual harm distinct from the general population.” Spokeo,
136 S. Ct. at 1553. Here, Charte is no different than any other
member of the public in terms of the concrete harm she
suffered when the government chose to prosecute or not
prosecute Wegeler, Sr. Thus, regardless of whether these
rights stem from the FCA, she lacks standing to assert them.8
2.
Perhaps anticipating the foregoing, Charte says:
[she] does not seek to intervene in the criminal
proceeding proper. James Wegeler, Sr. has
already been sentenced and has paid his
restitution. [Her] proposed intervention will
8
In that regard, the other instances of third parties being
permitted to intervene in criminal proceedings to which Charte
points us are inapposite. Those instances concern the
adjudication of limited, collateral questions such as the third
party’s constitutional right to access the proceeding or their
right to assert a privilege in the proceeding. See, e.g., In re
Associated Press, 162 F.3d 503, 506–09 (7th Cir. 1998)
(concerning the first amendment right of access to court
proceedings); United States v. Criden, 675 F.2d 550, 554–57
(3d Cir. 1982) (same); Fed. R. Crim. P. 60 (allowing victims to
assert a right to notice of a proceeding, to attend, and “to be
reasonably heard at any public proceeding in the district court
concerning release, plea, or sentencing involving a crime”
(emphases added)). That is a far cry from being allowed to
criminally prosecute another in the name of, and along with,
the United States.
19
simply be to protect the [her] interest, and that of
the United States, in [her] share.
Appellant Op. Br. 5. She made a similar statement to the
District Court. JA 40 (stating in the preliminary statement of
the brief supporting her motion that, “Jean Charte files this
Motion to ensure that monies received by the United States
from Mr. James Wegeler, Sr. are subject to her claim under the
False Claims Act.” (emphasis added)).
We routinely adjudicate the assertion of statutory-
procedural rights regarding similar property interests in
criminal proceedings. For example, in criminal forfeiture
proceedings, 21 U.S.C. § 853 permits intervention only in
limited circumstances “(1) third parties who had a vested
interest in the property at the time of the commission of the acts
that gave rise to forfeiture, and (2) bona fide purchasers for
value without cause to believe the property was subject to
forfeiture.” Van Dyck, 866 F.3d at 1133 (citing § 853(n)(6)).
Charte’s assertions are similar: that she has a vested
interest in a share of the restitution and that the FCA grants her
a procedural right to intervene to protect that interest. The
former assertion is aided by the fact that, as to this set of rights,
the FCA is “regarded as effecting a partial assignment of the
Government’s damages claim,” such that “the United States’
injury in fact suffices to confer standing on” relators in FCA
suits. Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529
U.S. 765, 773–74 (2000) (“[The] adequate basis for the
relator’s [FCA] suit for his bounty is to be found in the doctrine
that the assignee of a claim has standing to assert the injury in
fact suffered by the assignor.” (emphasis added)).
20
In that light, a ruling against Charte on this point would
require accepting that a relator has standing to “obtain[]
compensation for, or prevent[] the violation of” her right to a
relator’s award, id. at 772, but nonetheless saying that she lacks
standing to do exactly that, all against the backdrop that we
routinely adjudicate similar interests by third-parties in
criminal proceedings. To be clear, when it comes to a criminal
forfeiture proceeding, we agree that a relator has standing to
assert the relator’s “statutory procedural right . . . under the
alternate-remedy provision to have her relator’s share
adjudicated in the criminal forfeiture proceeding.”. See United
States v. Couch, 906 F.3d 1223, 1226–27 (11th Cir. 2018)
(explaining that the relator’s “motion to intervene in a
[criminal] proceeding to enforce an alleged property interest is
materially different from an attempt to compel a criminal
prosecution or alter a sentence”). That agreement
notwithstanding, however, we are not persuaded that a relator
in fact possesses such a statutory procedural right.
As the government forcefully argues, the text of the
FCA “compels the understanding” that “the district court in the
[FCA] suit remains responsible for adjudicating the relator’s
share of the proceeds of an alternate proceeding” brought by
the government under the alternate-remedy provision.
Appellee Br. 22. The alternate-remedy provision assumes that
the FCA suit will continue after the alternate-remedy
proceeding has concluded when it states “[a]ny finding of fact
or conclusion of law made in such proceeding that has become
final shall be conclusive on all parties to an action under this
section.” 31 U.S.C. § 3730(c)(5). The FCA then provides
detailed guidelines for determining a relator’s share in the
“proceeds of the action or settlement of the claim,” where “the
government proceeds with [the] action.” § 3730(d)(1). That
21
is, that the relator is entitled to “at least 15 percent but not more
than 25 percent . . ., depending upon the extent to which the
person substantially contributed to the prosecution of the
action[,]” and “no . . . more than 10 percent” where “the action
is one which the court finds to be based primarily on
disclosures of specific information (other than information
provided by the person bringing the action) . . . taking into
account the significance of the information and the role of the
person bringing the action in advancing the case to litigation.”
Id. (emphases added).
While other courts may use the procedural devices
available to them to assess the requisite “finding[s] of fact or
conclusion of law made in another proceeding,” that the FCA
outright provides this to the FCA court, as well as that the FCA
court is readily apprised of the information a relator provides
to the government, is a strong indication that Congress
intended the FCA court to be the one to make these
comparative determinations. That indication is even stronger
when one considers that the provisions setting forth the right to
a relator’s award are set forth in § 3730(d)(1), labeled “Award
to qui tam plaintiff,” whereas the rights that accompany “the
right to continue as a party to the action” are all set forth in
§ 3730(c)(1) and (2), labeled “Rights of the parties to qui tam
actions.”
Those textual and structural indicia are reinforced by
the Senate Report’s statement that “[i]f the Government
proceeds administratively, the district court shall stay the civil
action pending the administrative proceeding and any petitions
by the relator, in order to exercise his rights [in such
proceeding,] will be to the district court” rather than the court
in the proceeding pursued by the government under the
alternate-remedy provision. S. Rep. No. 99-345, at 27.
22
Together, these points compel the conclusion that, to the extent
that the FCA provides relators a right to intervene in another
proceeding, their interest in a share in the proceeds recovered
in that proceeding is not among those for which this right is
provided.
In other words, Charte is less like third parties in the 21
U.S.C. § 853 context, who are provided an express right to
intervene to assert their property interest, than she is like
victims, who also have an interest in any restitution that is
awarded but are not granted a statutory right to intervene and
assert it. See 18 U.S.C.A. § 3663A(a)(1) (requiring a court to
order restitution “to the victim of the offense or, if the victim
is deceased, to the victim’s estate”); Federal Sentencing
Guidelines Manual § 3E1.1(a) (U.S. Sentencing Comm’n
2016) (requiring that, “[i]n the case of an identifiable victim,
the court shall . . . enter a restitution order for the full amount
of the victim’s loss . . .”); but see Stoerr, 695 F.3d at 278
(noting that restitution orders can only be appealed and
modified “by the defendant and by the Government,” and that
“[crime] victims are non-parties to criminal proceedings”);
Kelly v. Robinson, 479 U.S. 36, 52 (1986) (“Although
restitution does resemble a judgment ‘for the benefit of’ the
victim, . . . [t]he victim has no control over the amount of
restitution awarded or over the decision to award restitution.”).
We are therefore aligned with our two sister circuits that
have addressed this question and hold that (1) a relator “lacks
standing to intervene in [the] criminal prosecution[] of
another” as it pertains to her participation rights, Van Dyck, 866
F.3d at 1133, and (2) even if a relator had standing to intervene
only as to her alleged interest in her share of the proceeds
collected by the government, the “sole remedy” that the FCA
provides her is to “commence” or continue the FCA action, id.
23
at 1135 (“The ‘alternate remedy’ provisions of the False
Claims Act do not permit a relator to intervene in a criminal
action for the purpose of asserting a right to the proceeds of
that action.”); see also Couch, 906 F.3d at 1228 (“[T]he
alternate-remedy provision does not expressly provide a right
of intervention in an ‘alternate proceeding.’” (emphasis
added)).
In so holding, we do not opine on whether a criminal
proceeding is an alternate remedy such that a relator retains her
FCA rights, including the right to a share in the proceeds.9 Nor
do we need to decide whether, even if a criminal proceeding
constituted an alternate remedy, the proceedings here would
qualify in light of the fact that 31 U.S.C. § 3729(d) precludes a
relator from obtaining a relator’s share in a claim under the
Internal Revenue Code. See § 3729(d) (“This section does not
apply to claims, records, or statements made under the Internal
Revenue Code of 1986.”). District Courts adjudicating FCA
suits routinely make these determinations and are best
equipped to do so.
*****
In the end, then, we maintain “the long line of precedent
holding that a [private individual] lacks a judicially cognizable
interest in [another]’s prosecution” and likewise, “in
[another’s] sentence.” Stoerr, 695 F.3d at 277–78. And Charte
9
Charte’s argument that “[d]enying the existence of an
alternate remedy works an anomalous outcome that treats [her]
less favorabl[y] than tax whistleblowers under Title 26,”
Appellant Op. Br. 51, speaks to whether she is entitled to a
share in the restitution, so it too does not warrant opining.
24
is not the exception she claimed to be: she may not pursue her
alleged interest in a relator’s award in Wegeler, Sr.’s criminal
case. Charte may nonetheless take solace in the government’s
representation—to this Court and to our two sister circuits that
have confronted this question—that it “allow[s] a qualified
relator to a share of the full amount of [a] damages award,
including the restitution previously paid.” Appellee Br. 29
(citing United States v. Wellcare Health Plans, Inc., 2011 WL
4431157, *2 (M.D. Fla. 2011), where “the Government . . .
escrowed 25% of [a] $40 million restitution, pending a
resolution of the [related] qui tam cases for [the] purpose” of
allowing the “Movant and the other relators” to “participat[e]
in the distribution of restitution paid incident to the criminal
prosecution”); see also Couch, 906 F.3d at 1228–29; Van
Dyck, 866 F.3d at 1135 n.3. For our part, we will affirm the
District Court’s order denying her motion to intervene.
25